Law Harmonization ad Local Specificities - a Case Study: OHADA and the Law of Contracts
(2013) Uniform Law Review — Vol. 18, n° 1, p. 50-64 (2013)
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- The process of law unification or harmonization has to take local specificities and traditions into consideration. This is no easy task, since by definition, unification or harmonization concerns several different legal systems, each with its own traditions, and it is basically aiming at suppressing differences. Sometimes, the avowed intention is even to eliminate some local usages deemed to be incompatible with the purposes of the project. The present article discusses the difficulties encountered when preparing a draft Uniform Act on the Law of Contracts for the seventeen African member state of OHADA. A fictitious panel is assembled of five experts who have recently expressed their views on the subject. In conclusion, a few observations are made with a view to enrich and clarify the discussion. The very concept of “local specificities” has to be clarified, as it can refer to very different features, which may call for differentiated approaches. In an area as wide as the seventeen member States of OHADA, taking “local specificities” limited to certain regions into account would in principle contradict the very idea of unification or harmonization; in principle, only more general features can be considered. Mainly, the purposes of the envisaged harmonization have to be clearly defined - as they may affect the relevance of such “local specificities” or even lead to adopting rules intended to correct some of their undesirable effects.
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Fontaine, M. (2013). Law Harmonization ad Local Specificities - a Case Study: OHADA and the Law of Contracts. Uniform Law Review, 18(1), 50-64. https://doi.org/10.1093/ulr/unt001 (Original work published 2013)