European Review of Private Law

Volume 20 (2012)

Volume 20 (2012) / Issue 1

Salvatore Mancuso, 'OHADA Report' (2012) 20 European Review of Private Law, Issue 1, pp. 169–183

Abstract

Abstract: The complexity of transnational sources is approached in this paper through the analysis of a regional report prepared through national reports of the member countries of the Organisation pour l'harmonisation en Afrique du droit des affaires (OHADA). The report contains the summary of the answers given by national reporters to nine questions prepared with the aim of investigating the difficulties related to the interaction of overlapping laws at a regional level.

First, the problem of fragmentation related to both national/international and regional/interregional sources of law and jurisdictions is considered, and the major actors in the detection of the conflict of laws are listed. Then, several responses (both only proposed or already implemented) to cope with the fragmentation issue are presented, according to the differences in each country. In addition, a number of monitoring mechanisms put in place by the executive powers of each country in order to avoid superimposition of laws and regulations at different levels are enumerated. Additionally, the issue of judiciary organization, training, and functioning is addressed in relation to transnational sources and specialized judicial institutions. The emerging strategies used by the judges in order to avoid the complexity due to the overlapping legal rules are studied, but no specific strategies are actually identified.

Finally, a tentative evaluation of the efficiency of the national courts in dealing with superimposition of laws is proposed to national reporters. However, the general problem of the lack of information and the scarce accessibility to the jurisprudence emerges and makes the aforementioned evaluation difficult.

 

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ISSN: 0928-9801
ID: ERPL2012009