ISSN: 2521-2605
Affiliations: Associate Professor, Department of Public Law, University of Cape Town, Attorney of the High Court of South Africa
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 118 – 126
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ISSN: 2521-2605
Affiliations: PhD Researcher, Centre for Comparative Law in Africa, University of Cape Town
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 111 – 116
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ISSN: 2521-2605
Affiliations: Legal Officer, Nigerio Deposit Insurance Corporation (NDIC)
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 101 – 110
The history of the establishment of the first deposit insurance system dates as far back as 1933 in the United States of America. Since then, the system has been recognised as an invaluable component of an efficient financial safety net in the economy of nations that have a stable financial system, and has been adopted and domesticated by many countries across the world. Despite the apparent benefits of a deposit insurance system, its penetration on the African continent has been low. This article seeks to examine the deposit insurance system and highlight its benefits to the financial systems that have adopted it on the African continent. Some of the reasons for the low penetration of this insurance system in Africa are examined and recommendations on how that situation could be reversed in the long run are proffered.
ISSN: 2521-2605
Affiliations: Advocate of the High Court of Kenya and Certified Public Secretary of Kenya
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 74 – 100
Generally, countries enter into monetary union agreements to promote economic integration. In turn, this economic integration is meant to spur equitable development among the member states. Aside from the potential economic gains, monetary unions raise a myriad of serious issues that are constitutional and political in nature. This is because this practice transfers sovereign power of the people from the nation to a supranational organisation. As such, this shift in authority alters the framework of a country’s governance system. This legal quandary forms the spine of this article. It seeks to demystify these constitutional issues from the perspective of Kenya and the prospective East African Monetary Union (EAMU). In addition, it provides a comparative study of the practice in Germany within the European Union (EU) and lessons it offers to Kenya in manoeuvring this legal dilemma.
ISSN: 2521-2605
Affiliations: Docteur en Droit privé, Assistant à la Faculté de Droit et de Sciences Politiques Université d’Abomey-Calavi, Bénin
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 39 – 73
Many voices have welcomed the recent recognition by the OHADA legislator of the agreement of forfeiture. The agreement is presented as a recovery mechanism, which offers the opportunity to obtain the repayment of secured debt quicker and cheaper. Yet the real situation is far from this objective. This article explains how, in practice, the creditor beneficiary of the agreement of forfeiture only has in his hands a weapon of relative efficiency, accompanied by uncertain effectiveness.
ISSN: 2521-2605
Affiliations: Company lawyer, Côte d’Ivoire
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 28 – 38
This technique was originally an Anglo-Saxon technique in which a borrower borrowed under a single loan agreement from a group of banks, and in addition to the syndicated loan, the borrower and the syndicate of banks, there is a security agent. The role of the security agent is to create, manage and enforce securities in his or her own name but on the behalf of the lending banks, to secure the claims of these banks. The security agent, which resulted from the common law, was adopted in countries with a civil law tradition, as the syndicated loan technique internationalised. However, the equivalent of security agents in some continental law countries — such as the Agent des Sûretés — seems relatively far from its Anglo-Saxon model. For example, French banking practice makes the French Agent des Sûretés the proxy holder of the lending banks. This proxy holder cannot create securities in his or her own name, but only in the name and on the behalf of the banking pool. He or she must obtain special powers from the banks for any act that goes beyond a simple administrative act. Lastly, like any other proxy holder, the French Agent des Sûretés can be dismissed ad nutum. The French legislator, under a law dated 19 February 2007, tried to give the French Agent des Sûretés a more advantageous legal status, but article 2381-1 of the Civil Code is too imprecise and incomplete. In contrast, the security agent introduced by the OHADA uniform Act that organises securities, dated 15 December 2010, offers a more interesting alternative to the security agent. Indeed, thanks to a comprehensive legislative package, the OHADA Agent des Sûretés — which is characterised as a fiduciary — is able to create any kind of securities and guarantees in his name and on the behalf of the banks he represents. The OHADA Agent des Sûretés is undeniably closer to the security agent and should inspire the French legislator to look ahead to the reform of article 2381-1 of the Civil Code.