Despite the achievements made in African law studies and the exchange of law between both sides, there is still a long way to go for Chinese scholars to be able to provide legal guarantees for the sound development of China-African business activities. As far as I am concerned, in China there is no systematic and extensive research in the commercial laws in Africa, especially the harmonized commercial law in some regions, which will constitute a potential obstacle for Chinese enterprises or individuals investing in the relevant African country or region.
III.The Harmonization of Commercial Laws in Africa: A Neglected Subject in China?
For historical reasons, diversity of laws has long existed on the African continent.[21]It is generally recognized that diversified legal systems will impede the international commercial activity and have negative effects on the commercial transactions between African merchants and foreign business partners,[22] especially foreign investment in Africa and trade between Africa and other countries.
Trade is the primary instrument for economic development; however, diversity in the legal regimes of African countries for international trade affects not only intra-African trade but also trade between African merchants and their counterparts from other countries.[23] So it is necessary for African countries to tackle the diversity of laws in order to promote international trade both intra-regional and extra-regional.[24]
It is the same with African investment laws, which are of vital importance to the national economic development of African countries.[25] The lack of co-ordination of African investment laws not only at the sub-regional level but also at the regional level, due to the fact that they are promulgated without regard to the policies of other African countries, hinders “the prospects of meaningful sub-regional or regional economic co-operation and complimentary economic development”, and also makes “the investor who would prefer to invest under uniform condition in a group of African countries instead of in one small one” feel confused.[26]
Furthermore, the diversity of international commercial laws among African countries is likely to impact the achievement of the objectives of the economic integration schemes.[27] Economic integration has been promoted as essential for the development, peace, and stability of Africa and “the imperative of integrating the economies of African countries is more urgent than ever”.[28] Various regional organizations were set up for this goal, such as the Economic Community of West African States (ECOWAS), the Southern Africa Development Community (SADC), the Common Market for Eastern and Southern Africa (COMESA), etc., the most ambitious one being the African Economic Community (AEC) aiming at the establishment of a common market in Africa. In fact, “the integration of markets has gone hand in hand with a proliferation of efforts to harmonize key aspects of the law relating to finance and trade,” and the harmonized legal rules will not only “prevent a race to the bottom between different jurisdictions” but also “lower the transaction costs and therefore foster international trade and commerce”.[29] So “law and policy in Africa needs to embrace global trends which, by definition, transcend national boundaries”.[30] As an African commentator has observed, “the harmonization of trade laws and commercial practices is an important ingredient of regional integration, without which meaningful economic integration cannot be achieved.”[31] Nevertheless, little work has been done in the area of harmonization of law in Africa until OHADA was set up in 1993.
