This dissertation evaluates the Organization for the Harmonisation of Business Law in Africa (OHADA) in relation to the informal sector in West Africa. The paper also considers the challenges to successful legal reform arising from the interaction of African cultural and social values with imposed formal law. Means to improve links between OHADA formal laws and institutions to the realities of the majority of Africans living and operating in the informal sector are suggested. These topics are explored within a thematic context of desiring to enhance the development prospects for the people in the region.

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University of Macau / Faculty of Law

The thesis lends support to the functionalist theory of Konrad Zweigert and Heinz Kötz that legal systems converge on results but diverge on means. We apply the Mexican and the Canadian legal systems to a hypothetical discrimination case. This work shows that, although the Mexican and the Canadian legal systems have different legal principles, different concepts of discrimination and different means of choosing the appropriate forum, law and remedy, both jurisdictions produce the same result: the protection of the equalization of opportunities human right of people of vulnerable social groups by compensating individuals for rights which have been infringed.

The thesis lends support to the functionalist theory of Konrad Zweigert and Heinz Kötz that legal systems converge on results but diverge on means. We apply the Mexican and the Canadian legal systems to a hypothetical discrimination case. This work shows that, although the Mexican and the Canadian legal systems have different legal principles, different concepts of discrimination and different means of choosing the appropriate forum, law and remedy, both jurisdictions produce the same result: the protection of the equalization of opportunities human right of people of vulnerable social groups by compensating individuals for rights which have been infringed.

This article examines whether the police have a constitutional duty to inform ‘suspects’ about their fundamental rights, despite the fact that section 35 of the Constitution of the Republic of South Africa, 1996, is silent on this issue. The decisions of the different divisions of the South African High Court diverge on this question, and the Constitutional Court has not yet had the opportunity to settle it. In an attempt to resolve this question, this article considers the underlying principles of binding and non-binding international law standards, as well as how this is approached in the Canadian and United States’ jurisdictions. This analysis reveals that an emerging consensus of opinion is developing which suggests that the informational duties should arise from the moment the police embark on an adversarial relationship with suspects, by approaching them to establish or disprove the existence of evidence linking them to a crime. The author concludes that such an approach accords with a contextual and purposive interpretation, and should be embraced.

This thesis analyses legal institutions which appear to be developing in a similar way and reveals the significance of historical, legal and cultural backgrounds. ADR processes are perceived and developed as international and necessarily standardized, or simply as culturally neutral institutions. However, this analysis shows that alternative conflict resolution methods remain culturally embedded. This analysis is based on the role of the judge in ADR in France and B.C. The comparative method seemed appropriate to conduct the analysis as it facilitates a focus on cultural influences which reveals differences in the definition of the judge's role in ADR in both jurisdictions. The first chapter examines comparative law - its nature and objectives, as well as the potential pitfalls. Courts have been chosen as the institutions on which to base our research of the cultural element in ADR because they appear to be culturally embedded. The second chapter attempts to trace historical evolution and political factors which shaped the judicial institution in both jurisdictions. The role of the judge in proceedings is analyzed with particular emphasis on the process of judging. The professional education of judges in both jurisdictions is also examined. To frame the analysis two of the roles of judges which have often been used in the literature are used, namely the role of dispute settlement and the role of policy maker. A third chapter outlines the similar development of ADR in France and B.C. and explores the reasons behind this. Finally, a comparison of the intervention by the judge in enforcing settlement agreements, enforcing arbitration agreements and conducting court mediation is made. The analysis relies on the definition of judges' role as defined by the legislator, and the interpretation of that definition by the courts. It is concluded that, while no absolute pattern of the influence of cultural and historical background on the shaping of the role of the judge in ADR can be identified, this influence exists nonetheless. The similarities between, and the perceived unification of ADR institutions are therefore superficial, as ADR is molded through institutions such as judges, influenced at the same time by the cultural identity of the jurisdictions in which they operate.