1 See G Bertucci and A Alberti “Globalization and the role of the state: Challenges and perspectives”, available at: <http://unpan1.un.org/intradoc/groups/public/documents/un/unpan006225.pdf> (last accessed 29 April 2013).

2 Cited in Ademola, YHarmonisation of Laws in Africa (1999, Malthouse Press Ltd) at 44Google Scholar.

3 Pauwelyn defined forum shopping as “a litigant's attempt to have his action tried in a particular court or jurisdiction where he feels he will receive the most favourable treatment or verdict”; see Pauwelyn, J “Going global, regional, or both? Dispute settlement in the Southern African Development Community (SADC) and overlaps with the WTO and other jurisdictions” (2004) 13 Minnesota Journal of Global Trade, Inc 231 at 234Google Scholar. With regard to insolvency, it is situation where a debtor decides to transfer assets or proceedings from one member state to another in order to secure a more favourable legal position: recital 4 of the EU Insolvency Regulation of 2000.

4 Wessel, B (ed) Cross-Border Insolvency: International Instruments and Commentary (2007, Kluwer Law International) at 9Google Scholar.

5 International organizations may be described as a platform for interaction between and among various states; see Weiller, JHHThe Constitution of Europe: Do the New Clothes Have an Emperor? And Other Essays on European Integration (1999, Cambridge University Press) at 273Google Scholar.

6 17 October 1993, as amended by the Revised OHADA Treaty, 17 October 2008. The Revised Treaty came into force on 21 March 2010.

7 Id, art 2.

8 1 January 1999.

9 SADC Treaty, art 5.

10 DJ Nangela “Harmonisation of national laws in the context of SADC regional integration: Analysis of SADC's initiatives in the area of e- commerce” (paper presented at the first annual SADC law seminar series on SADC law, “Building towards regional integration”, University of Cape Town, 17–18 November 2011) at 22.

11 Sayi, ENHarmonisation of Insolvency Law in East African Community (LLM dissertation, Vrije University, Amsterdam, 2006) at 23Google Scholar.

12 Above at note 8.

13 See Mazrui, A and Tidy, MNationalism and New States in Africa (1985, Heinemann) at 85Google Scholar.

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16 The Treaty of SADC, Windhoek, 17 August 1992. After citing the objectives previously enunciated in “Southern African toward economic liberation” (a declaration by the governments of independent states of southern Africa made at Lusaka, 1 April 1980), the treaty established the SADC.

17 Kruger, T “Regional organizations and their dispute settlement bodies” 2008 De Jure 306Google Scholar.

18 SADC Treaty, art 21(3)(a), (b), (c), (d), (e), (f) and (g). Art 21 sets the areas of cooperation, ranging from food security and agriculture, to international relations and peace.

19 Id, art 9. See Leno, D “Regionalism: Lessons the SADC can learn from OHADA” (2012) 75 Contemporary Roman-Dutch Law 256 at 259Google Scholar.

20 Chinsinga, B “The challenges of globalization and regional integration: The case of the Southern African Development Community” in Milazi, M et al. (eds) Democracy, Human Rights and Regional Co-operation (2002, Africa Institute of South Africa) 115Google Scholar.

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23 Mason, R “Cross-border insolvency law: Where private international law and insolvency law meet” in Omar, J (ed) International Insolvency Law: Themes and Perspectives (2008, Ashgate Publishing Co) 27 at 39Google Scholar; see Nygh, PE and Davies, MConflict of Laws in Australia (7th ed, 2002, LexisNexis Butterworth) at 6–7Google Scholar.

24 See the preamble of the SADC Treaty as amended in 2001.

25 South Africa in fact adopted a Cross-Border Insolvency Act 42 in 2000, but it is not yet in force because the minister of justice has not yet designated the relevant countries to which it will apply.

26 McClean, D and Beevers, KThe Conflict of Laws (6th ed, 2005, Sweet & Maxwell) at 2–3Google Scholar.

27 Ibid.

28 See Prosser, D “Interstate publication” (1951) 51 Michigan Law Review 959 at 971Google Scholar.

29 See Mason “Cross-border insolvency law”, above at note 23 at 41.

30 See Walsh, AD and Ryan, KW “Harmonization and standardization of legal aspects of international trade” (1977) 51 Australian Law JournalGoogle Scholar 608; see also Hayes, “HL “A modern lex mercatoria [merchant law]: Political rhetoric or substantive progress?” (1977) 3 Brooklyne Journal International Law 210Google Scholar and Cremades, BM and Plehn, LS “The new lex mercatoria and the harmonisation of the laws of international commercial transactions” (1984) 3 Boston Uniform International Law Journal 317Google Scholar.

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32 See “China as a river of regional integration in Africa: Prospects for the future”, available at: <http://www.ccs.org.za/downloads/DBSA%20Conference%20Report.pdf> (last accessed 16 December 2011).

33 For example, Sackstein NO v Proudfoot SA (Pty) Limited [2003] 4 SCA 348; and Ward v Smith and Others: In Re Gurr v Zambia Airways Corp Ltd [1998] 3 SA 175. See “South Africa” in INSOL International Cross-border Insolvency: A Guide to Recognition and Enforcement (2003, INSOL International), chap 32.

34 Ibid.

35 See D Ailola “Recognition of foreign proceedings”, above at note 22.

36 Sec 323 of the Companies Act 61 of 1973, as amended by the Companies Bill of 2008.

37 In Namibia on 29 April 1998 and in South Africa on 29 July 1998.

38 That was on 10 March 2000.

39 Boraine, A “Avoidance provisions in a local and cross-border context: A comparative overview” 2008 INSOL International (Technical Series Issue No 7) at 21–22Google Scholar.

40 This was in terms of sec 29(1) of South Africa's Insolvency Act, no 24 of 1936, dealing with voidable dispositions and sec 30 dealing with voidable preferences.

41 Act No 24 of 1936.

42 Smith, A and Boraine, A “Cross-border insolvency law and the local creditor's risk of receiving payment from a foreign company registered as an external company in South Africa” (2004) 16 South African Mercantile Law Journal 495 at 496Google Scholar.

43 Id at 499.

44 The “suspect period” is the period between the date of insolvency and date of judgment. This is limited to a period of 18 months.

45 OIA, art 69.

46 Id, art 67.

47 Id, art 69(4)(2).

48 Smith and Boraine “Cross-border insolvency law”, above note 42 at 498.

49 Above at note 33 at 10.

50 Franco, J “The cross-border insolvency act: Lifting the barriers or creating new ones?” (2003) 15 South African Mercantile Law Journal 27 at 31Google Scholar.

51 Ex parte Steyn [1979] 2 SA 309(0) at 312c. This point was criticized by Smith, A and Boraine, A “The grab rule foils the foreign liquidator in his own jurisdiction” (2002) American Bankruptcy Institute Law Review 135 at 184Google Scholar.

52 Smith and Boraine “Cross-border insolvency law”, above note 42 at 496.

53 Bertelsmann, E et al. Mars: The Law of Insolvency in South Africa (9th ed, 2008, Juta Law Publishers) at 671Google Scholar.

54 Ex parte Palmer NO: In re Hahn [1993] 3 SA 359(c); Ex parte Stegmann [1902] TS 40; Moolman v Builders and Developers (Pty) Ltd [1990] 1 SA 954 (A) 961C; and Clegg v Priestly [1985] 3 SA 950(w).

55 [1996] 2 SA 681.

56 See Ailola “Recognition of foreign proceedings”, above at note 22 at 63.

57 Bekker NO v Kotze and Another [1996] 4 SA 1287 (Nm); [1996] 4 SA 1293 (Nm).

58 See Sarra, JPCreditors Rights and the Public Interest, Restructuring Insolvent Corporations (2003, University of Toronto Press) at 70CrossRefGoogle Scholar.

59 JP Sarra “Widening the insolvency lens: The treatment of employees claims” in Omar (ed) International Insolvency Law, above at note 23, 295.

60 Employees contribute to the productivity of a firm in terms of their labour inputs, time, energy and loyalty, which enhances the firm's value.

61 In South Africa, contracts of employment terminate 45 days after the appointment of the final trustee or liquidator: SAIA, sec 38. The same applies in Namibia (Insolvency Act 61 of 1936, sec 38) and Botswana (Insolvency Act 1929, sec 38).

62 See SAIA, secs 96–103, Namibia Insolvency Act, secs 96–103 and Botswana Insolvency Act, secs 82–88.

63 Convention 173 of 1992.

64 Labour Relations Act 66 of 1995, sec 197A(2)(c).

65 Id, sec 197(6). See S Van Eck and A Boraine “A plea for the development of coherent labour and insolvency principles on a regional basis in the SADC countries” in Omar (ed) International Insolvency Law, above at note 23, 267 at 273.

66 Id, secs 197(2), 187(1)(g) and 197(6); see Van Eck and Boraine, ibid.

67 Van Eck and Boraine, id at 282 and 289.

68 Fey, T “Labour standards in southern Africa in the context of globalization: The need for a common approach” (1999) 20 Industrial Law Journal 1454Google Scholar. Social dumping has been defined as a situation where “goods produced by means of cheap labour … are exported to countries with higher labour standards”; see Calitz, J “Harmonisation of labour law in southern Africa” 2008 De Jure 223 at 225Google Scholar.

69 Mosley, Omar H “The social dimension of European integration” (1990) 129 International Law Review 147 at 147Google Scholar.

70 SADC Treaty, art 5(2)(a).

71 See above at note 6.

72 OHADA Treaty, art 52.

73 For example, Law 95-006 of 4 April 1995 authorized the president of the Republic of Cameroon to ratify the treaty.

74 Abarchi, D “La supranationalité de L'Organisation Pour L'Harmonisation en Afrique du Droit des Affaires (OHADA)” [“The supranationality of OHADA” (2000) Revue Burkinabé du Droit 10CrossRefGoogle Scholar.

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76 Tumnde, MS “Harmonisation of business law in Cameroon: Issues, challenges and prospects” (2010) 25 Tulane European and Civil Law Forum 119Google Scholar.

77 OHADA Treaty, art 42 provides: “Le français est la langue de travail” [“French is the working language of OHADA”]. Based on this dominance, all printing is done in French: OHADA Treaty, art 63. Enonchong, N “The harmonisation of business law in Africa: Is article 42 of the OHADA Treaty a problem?” 2007 Journal of African Law 95CrossRefGoogle Scholar.

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79 OHADA Treaty, art 53.

80 Above at note 6.

81 Revised OHADA Treaty, art 42.

82 OHADA Treaty, art 3.

83 Id, art 1.

84 Id, art 2. The tenth universal act will be on contract law; see M Fontaine “OHADA uniform act on contract law: Explanatory notes to the preliminary draft”, available at: <http://www.unidroit.org/english/legalcooperation/ohada%20explanatory%20note-e.pdf> (last accessed 1 May 2013).

85 The Conference of Heads of State and Government, the Council of Ministers, the Permanent Secretariat, the Advanced Regional School of Magistracy and the Joint Court of Justice and Arbitration: OHADA Treaty, arts 27–41.

86 Dickerson, CM “Community laws in international business transactions” in Dickerson, CM (ed) Unified Business Laws in Africa: Common Law Perspectives on OHADA (2009, Kogan Pages) 1 at 1Google Scholar.

87 AJ Awusu-Ansah “The OHADA Treaty in the context of international insolvency law developments”, available at: <http://www.iiiglobal.org/component/jdownloads/finish/398/1555.html> (last accessed 10 May 2013).

88 MS Tumnde “OHADA as experienced in Cameroon: Addressing areas of particular concern to common law jurists” in Dickerson (ed) Unified Business Laws in Africa, above at note 86, 70.

89 OIA, art 25. OHADA adopts the balance sheet approach to insolvency.

90 Wessels, B “Insolvency in the Middle East and Africa” (2010) 4 Quarterly Journal of INSOL International 14Google Scholar.

91 Wessels, B “Insolvency Law” in Smits, JMElgar Encyclopaedia of Comparative Law (2006, Edward Elgar Publishing) 294Google Scholar.

92 OIA, art 2.

93 Ibid.

94 Art 2 of the General Commercial Law 1998 define traders as “persons whose regular occupation is to carry out commercial transactions”, while art 3 defines commercial transactions as including “the purchase of movable or immovable property for resale, banking, stock and currency exchange, brokerage and transit transactions and the industrial exploitation of mines, quarries and any natural resource deposit…”

95 Insurance companies are regulated by the Inter-African Conference on Insurance (CIMA) Code of 10 July 1992, as amended by Regulation 0002/CIMA/PCMA/CE/SG/2007 of 15 October 2007.

96 OIA, arts 72 and 75.

97 Id, art 253.

98 Id, art 250(1).

99 Id, art 255.

100 Id, art 256.

101 Leno, DN “National report for Cameroon” in Faber, D, Vermunt, N, Kilborn, J and Richter, T (eds) Commencement of Insolvency Proceedings (2012, Oxford University Press) 116Google Scholar.

102 OIA, arts 95 and 96.

103 Id, arts 166–67.

104 An expert is not an insolvency practitioner but a judge appointed by the president of the competent court to investigate the economic and financial situation of a debtor before any of the collective procedures are granted.

105 This is a public limited company created in 1974 with its registered office in Cameroon. It manufactures whipped cream.

106 It is unfortunate that the OIA does not state the persons responsible for initiating a PSP.

107 See the High Court of Wouri, Douala order 845/PTGI/W/DLA of 17 December 2008 and civil judgment of 27 May 2009.

108 OIA, arts 8, 12 and 22.

109 Ibid.

110 Id, art 25.

111 Ibid.

112 See Awusu-Ansah “The OHADA Treaty”, above at note 87.

113 OIA, arts 35–36.

114 Id, art 52 and French Decree 21 of 1988, art 2.

115 OIA, arts 216–25.

116 Judgment 39/2002 of 5 April 2002.

117 This did not enter into force due to one member's failure to ratify it. However, it has been superseded by the current council regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings.

118 Council of Europe, 5 June 1990.

119 30 May 1997. Available at: <http://www.uncitral.org/pdf/english/texts/insolven/insolvency-e.pdf> (last accessed 23 April 2013).

120 EN Sayi Harmonisation of Insolvency Law, above at note 11 at 26.

121 Ibid.

122 Model Law, art 2 (c).

123 EU Regulation 2000, arts 16, 17 and 25.

124 Id, arts 3(1) and 27 and OIA, art 251.

125 OIA, arts 21 and 22.

126 OIA, art 247; Tiger, P “Les procédures collectives après cessation des paiements en droit harmonise de l'OHADA” [“The OHADA Uniform Act on Collective Proceedings for the Wiping of Debts”] 2004 Petites Affiches 35Google Scholar.

127 Regarding distribution, any surplus realized from one proceeding must be transferred or handed over to administrators or liquidators in other insolvency proceedings: OIA, art 256. Thus, a creditor who has received payment in one proceeding, say the principal proceeding, is not allowed to receive payment in secondary proceedings until other creditors of the same class of preference have been paid: OIA, art 225.

128 Id, art 249.

129 Id, art 251.

130 The Common Court of Justice and Arbitration (CCJA) 7 February 2002.

131 See Awusu-Ansah “The OHADA Treaty”, above at note 87 at 7.

132 Benin, Burkina Faso, Central African Republic, Chad, Congo, Ivory Coast, Mali, Mauritania, Niger, Senegal and Togo.

133 The 11 member states were the majority shareholders with 68.4 % stake in the company; Air France held 12 %, the French Development Agency 9 %, with the other stockholders holding 10.6 %.

134 Awusu-Ansah “The OHADA Treaty”, above at note 87 at 6.

135 See African Development Bank “Multinational company Air-Afrique reinforcement project: Project completion report”, available at: <http://www.afdb.org/fileadmin/uploads/afdb/Documents/Project-and-Operations/ADB-BD-IF-99-310-EN-MULTINATIONAL-PCR-MULTINATIONAL-COMPANY-AIR-AFRIQUE-REINFORCEMENT-PROJECT.PDF> (last accessed 1 May 2013).

136 BBC “Air Afrique wound-up”, available at: < http://www.airliners.net/aviation-forums/general_aviation/read.main/545737/> (last accessed 1 May 2013).

137 Judgment 04/2004 of 8 January 2004; OIA, art 32.

138 OHADA Treaty, art 10.

139 Ibid.

140 OIA, arts 72 and 75.

141 Fletcher, ICross-Border Insolvency: Comparative Dimension (1999, United Kingdom Comparative Law Series) at xxiGoogle Scholar.

142 OIA, arts 7 and 119.

143 Leno “National report for Cameroon”, above at note 101 at 19.

144 In Cameroon, judges are appointed after two years' training at the School of Administration and Magistracy.

145 This is equivalent to approximately USD 1,000.

146 The CCJA is located in Abidjan in the Ivory Coast; see: <http://www.aict-ctia.org/courts_subreg/ohada/ohada_home.html> (last accessed 30 April 2013).

147 Meyer, J “La sécurité juridique et judiciaire dans l'espace OHADA” [“Legal and judicial security within the OHADA space”] 2005 Revue Penant 151Google Scholar.

148 OHADA Treaty, art 13.

149 Id, art 14.

150 Id, art 20.

151 Id, art 15.

152 Id, art 16.

153 Judgment 001/2005 of 27 January 2005.

154 O Ruppel “The case of Mike Campbell and the SADC Tribunal under review” (paper presented at the second international conference on regional integration and SADC law, Maputo, Mozambique, 9–11 November 2010) at 12.

155 Smits, JThe Contribution of Mixed Legal Systems to European Private Law (2001, Intersentia Uitgevers Antwerpen) at 2Google Scholar.

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157 See Brunee, J and Toope, ST “Environmental security and fresh water resources: Ecosystem regime building” (1997) 91 American Journal of International Law 26Google Scholar, in which the authors suggest and urge the use of a framework convention.

158 SADC T 2 2007. See Memory, D and Midgley, R “Land reform in Zimbabwe: Context, process, legal and constitutional issues and implications for the SADC region” 2008 Monitoring Regional Integration in Southern Africa Yearbook 1Google Scholar.

159 As amended by Amendment Act No 17 of 2005.

160 See Zongwa, DP “The contribution of Campbell v Zimbabwe to foreign investment law on expropriations” (2010) 22 Namibia Law Journal 29Google Scholar.

161 SADC Treaty, art 6(2) provides: “SADC and Member States shall not discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture, ill health, disability, or such other ground as may be determined by the Summit”, while art 4 provides that SADC and its member states shall act in accordance with the following principles: “(a) sovereign equality of all Member States; (b) solidarity, peace and security; (c) human rights, democracy and the rule of law; (d) equity, balance and mutual benefit; and (e) peaceful settlement of disputes.”

162 E Voeten “Regional judicial institutions and economic cooperation: Lessons for Asia” (2010, Asian Development Bank working paper series on regional economic integration) at 18.

163 Kacowicz, AM “Compliance and non-compliance with international norms in territorial disputes: The Latin American record of arbitration” in Benvenidti, E and Hirsch, M (eds) The Impact of International Law on International Co-operation: Theoretical Perspectives (2004, Cambridge University Press) 194 at 198Google Scholar.

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167 EC treaty, art 226, which provides: “If the commission considers that a member state has failed to fulfil an obligation under the treaty, it shall deliver a reasoned opinion on the matter after giving the state concerned the opportunity to submit its observations. If the state concerned does not comply with the opinion within the period laid down by the commission, the latter may bring the matter before the court of justice.”

168 Ibid.

169 See the United States Bankruptcy Act of 1978.

170 See Boraine, A “The Draft Insolvency Bill: An exploration” (part 1) 1998 Journal of South African Law 621Google Scholar.

171 Keay, ATo Unify or Not to Unify Insolvency Legislation: International Experience and the Latest South African Proposals (1999, De Jure) at 71Google Scholar.

172 Id at 79.

173 Sarra “Widening the insolvency lens”, above at note 59 at 296.

174 “Employee” here means anyone who is subject to the control of an employer.

175 See Tumnde “Harmonisation of business law in Cameroon”, above at note 76.

176 Sarra “Widening the insolvency lens”, above note 59 at 311.

177 Id at 296.

178 See O Ruppel “The question of land ownership in post-colonial African development” (Economic Community of Central African States, fourth European conference on African studies, Uppsala, 15–18 June 2011: panel 133), available at: <http://www.nai.uu.se/ecas-4/panels/121-140/panel-133/Oliver-Ruppel-full-paper.pdf> (last accessed 24 November 2011).

179 Sarooshi, DInternational Organizations and Their Exercise of Sovereign Powers (2005, Oxford University Press) at 65Google Scholar.

180 Allan, DRegional Integration and Food Security in Developing Countries (2003, Practicing Law Institute) at 8Google Scholar.

181 Ruppel “The case of Mike Campbell”, above at note 154 at 12.