【作者简介】
Weidong Zhu,Ph.D, Associate Professor of Private International Law, Faculty of Law, Deputy Director of the Centre for African Laws and Society, Xiangtan .
【注释】
This is the paper presented at the international conference "The Harmonization of Commercial Laws in Africa and Its Advantage for China''s Investment in Africa" held in the University of Macau, Nov.26-29, 2007, which may be relevant for this conference. Please don''t quote this article for any purpose without the author''s permission.
I thank professor Hong Yonghong for his beneficial comment in drafting the article, and I also thank Dr. Steven B.Davis, Director of the Centre for Scholarly English (USA) for his invaluable help in editing the article.
Zhang Xiang, "Sino-African Relations Date Back to Ancient Times", Daily Graphic, August 10, 1994.
See People Daily, January 15, 1983. The 11 African countries are Egypt, Algeria, Morocco, Guinea, Gabon, Zaire, Congo Brazzaville, Zambia, Zimbabwe, Tanzania and Kenya.
According to Premier Wen Jiabao, China-African trade should reach the US$100 billion mark in 2010, double the figure in 2006.
The statistics are available at the website of the Ministry of Commerce, PRC: http://xyf.mofcom.gov.cn/date/date.html
Gong Wen, “The China-African Trade Volume Surpassed US$20 Billion for the First Time”, People’s Daily, January 12, 2005.
Gong Wen, “The China-African Trade Volume reached US$55.5”, People Daily, May 15, 2007.
Tang Jiaxuan: “China-African Relationship and the Significance of the FOCAC Beijing Summit”, available at http://www.scio.gov.cn/zgxwybd/en/2006/22/200612/t103738.htm.
Forum on China-Africa Cooperation-Addis Ababa Action Plan, available at http://www.focac.org/eng/zyzl/hywj/t157710.htm.
Craig Timberg, "Inventive South Africa Firms Thrive in Booming China", Washington Post, Sunday, February 11, 2007; and also “out of Guangzhou, African Trade Booms”, available at http://www.chinaview.cn, May 23, 2006.
The documents can be found at http://www.focac.org/eng/zyzl/hywj/.
The measures put forward that are especially conducive to the development of mutual trade and investment are as follows:
·To provide 3 billion US dollars of preferential loans and 2 billion US dollars of preferential buyer''s credits to Africa in the next three years;
·To set up a China-Africa development fund which will reach 5 billion US dollars to encourage Chinese companies to invest in Africa and provide support to them;
·To further open up China''s market to Africa by increasing from 190 to over 440 kinds of goods to China receiving zero-tariff treatment from the least developed countries in Africa having diplomatic ties with China;
·To establish three to five trade and economic cooperation zones in Africa in the next three years.
for example, the China-African Trade and Investment Seminars held in Zhengzhou and Wuhan on April 26 and July 3 respectively, the Meeting on the Investment Environment in Africa held in Xiamen on September 8 and the latest China-African Trade and Investment Forum held in Shanghai on November 11.
http://www.mofcom.gov.cn/aarticle/hzzn/200708/20070805041937.html.
Mark Turner, “Commercial Law Plan in Francophone Africa”, Financial Times, May 13, 1999.
Chen Gongyuan, “A Long Way Ahead for the African Studies in China”, People Daily, August 10, 2000.
Hong Yonghong, “Promote the African Law Studies in China”, 1 Journal of West Asia and Africa (1999), p.52.
The research staffs in the Centre have published several books on African law, such as Introduction to African Law written by professor Hong Yonghong, Xia Xinhua, etc.; African Criminal Law Review edited by professor Hong Yonghong, Development of African Law edited by professor He Qinhua, Hong Yonghong, etc. Besides, the research staffs in the Centre have published more than 130 articles on various aspects of African law and undertaken many research projects on African law. We also opened special columns on African law in many journals or newspapers, such as the Journal of West Asia and Africa, Journal of Hebei Legal Science, the People’ Court Daily, which contribute to the understanding of African law in China. Furthermore, the Centre enrolls students reading for LL.M or Ph.D degree in African law every year, so far more than 10 students have graduated.
The Centre’s research for the moment covers the following fields: the theories and practices of African law; the transition of African law and the social development; as well as the human rights and diplomacy in Africa.
Other African scholars such as professor Andre Thomashausen and professor Christian Schulze from the Institute of Foreign and Comparative Law, the University of South Africa, and Professor John Kiggundu from the University of Botswana, also contributed a lot to the exchange of law between both sides by sending us valuable African law materials.
According to the Memorandum of Understanding, The management teams of both institutions have recognized that there is substantial synergy between the Law Department and the Centre for African Law in that both seek, inter alia, to: Enhance the research and study of law, particularly African laws; Develop programs that will enhance an understanding of Chinese law and its impact on China’s rapid economic development; Develop programs that can promote greater understanding between African and Chinese law: and Promote joint research programs. The Law Department and the Centre for African Laws undertake to work closely with each other in the following form and areas:
·Facilitate staff exchanges for periods of 1-3 months on such terms and at such periods as shall be mutually agreed upon;
·Organise seminars and workshops for students of both institutions on topics mutually agreed upon which will require lectures by staff from both institutions;
·Organise joint research and publications teams who will co-operate in identify, research, and publish jointly on topics of mutual benefit to both institutions and their countries;
·Participate in other such projects and programs that are mutually beneficial to both institutions in ways that will enhance co-operation and economic development in both countries.
According to the plan proposed by the colleague from the University of Namibia, the program will be implemented in partnership with the World Trade Organization (WTO) and the partner university, the students from both sides will be enrolled and they will get Diploma or Master’s Degree in Trade Policy after their studies.
Diversity of laws exists in Africa at least in three ways: First, there is internal diversity within individual countries; Second, there is diversity among different African countries (intra-African diversity) and the third, perhaps yet more important, there is diversity between African states and other (non-African states), see Gbenga Bamodu, “Transnational Law, Unification and Harmonization of International Commercial Law in Africa”, 38 J. A. L. (1994), p.125.
Gbenga Bamodu, op.cit., p.125.
Ibid, pp.128-129.
Ibid, p.130.
A. M. Akiwumi, “A Plea for the Harmonization of African Investment Law”, 19 J. A. L.( 1975), p.134.
Ibid, p.134 and p.153.
Gbenga Bamodu, op. cit.,p.125.
Richard Frimpong Oppong, “Private International Law in Africa: the Past, Present, and Future”, 55 Am. J. Comp. L.(2007), p.702.
Katharina Pistor, “The Standardization of Law and Its Effect on Developing Economies”, 50 Am. J. Comp. L.(2002), p.97 and p.104.
Olusoji O. Elias, “Globalization, ‘Law and Development’, and Contemporary Africa”, 2 European Journal of Law Reform (2000), p.259.
M. Ndulo, “Harmonization of Trade Laws in the African Economic Community”, 42 I.C.L.Q. (1993), p.107.
Gbenga Bamodu, op.cit.; A. M. Akiwumi, op.cit.; M. Ndulo, op.cit.; Richard Frimpong Oppong, “Private International Law and the African Economic Community: A Plea for Greater Attention”, 55 I.C.L.Q. (2006). The Institute for Private International Law in Southern Africa is involved with drafting a code of private international law contract for the SADC region and/ or African Union (AU), see http://general.rau.ac.za/law/English/ipr/ipr.htm.
Article 53 of the OHADA Treaty.
Preamble to the Treaty on the Harmonization of Business Law in Africa.
Boris Martor, Nanette Pikington, David S. Sellers and Sebastien Thouvenot, Business Law in Africa: OHADA and the Harmonization Process, Kogan Page (2002), p.6.
Article 10 of OHADA Treaty.
Xavier Forneris, “Harmonizing Commercial Law in Africa: the OHADA”, available at http://www.ohada.com/biblio_detail.php?article=480.
Clarire Moore Dikerson, “Harmonizing Business Laws in Africa: OHADA Calls the Tune”, 44 Colum. J. Transnat’l L. (2005), p.55.
Marc Frilet, “Uniform Commercial Laws, Infrastructure and Project Finance in Africa”, 28 International Business Lawyer (2000), p.215.
Jacques Andy Isabelle, “OHADA: Reforming Business Law in Africa”, available at http://www.ohada.com/infohada_detail.php?article=348.
Xavier Forneris, op. cit. but we should also bear in mind, OHADA, like any other regional integration in Africa, has its own problems and shortcomings, for example, insufficient national participation, to much influence from France, lack of the participation of common law countries, uneasy access to court decisions and scholarly commentaries on the Uniform Acts, poor judicial system, etc. see Xavier Forneris, op. cit.; Claire Moore Dickerson, op. cit., p.67; Jean Alain PENSDA and Dr. TUMNDE, “The Roadmap of the Harmonization of Business Law in Africa”, available at http://www.ohada.com/biblio_detail.php?article=452.
He Qinhua＆Hong Yonghong, The History of African Law, Law Press (2006), pp.518-519; Zhu Weidong, “The Harmonization and Unification of International Commercial Laws in Africa”, 3 Journal of West Asia and Africa (2003), p.70.
Clarire Moore Dikerson, op. cit., p.67.
Clarire Moore Dikerson, op. cit., p.30.
