Tools
Tools
Kaphale, KE, 2024. The harmonization of transaction avoidance rules in the insolvency laws of the Common Market for Eastern and Southern Africa. PhD, Nottingham Trent University.
Preview |
Text
KALEKENI KAPHALE 2025.pdf - Published version Download (2MB) | Preview |
Abstract
The study explores whether there is a legal case for the harmonization or approximation of transaction avoidance rules in the insolvency laws of members states of the Common Market for Eastern and Southern Africa (‘COMESA’). It also inquires into whether the regional economic body is optimally constituted to undertake legal harmonization and how it can undertake the process of harmonizing the transaction avoidance rules of its member states.
The study has been prompted, firstly, by the treaty imperative in article 4(6)(b) of the COMESA Treaty mandating member states to harmonize or approximate their laws to the extent possible for the better functioning of the common market. Secondly, it has been made necessary by the economic reality that a marketplace will function better where there are common rules governing commerce.
The study has suggested improvements to aspects of the COMESA constitutive treaty to optimize it for legal harmonization. The study has observed that current avoidance rules in COMESA member states have no single common goal that they are pursuing. Using the functional approach within comparative legal methodology, the study has identified the treaty aspiration of attracting investment into the marketplace as the goal that harmonized transaction avoidance rules in COMESA must aim at achieving. Bearing this in mind, the study has proposed the enactment of a COMESA directive that will harmonize transaction avoidance rules dealing with preferences, gifts and transactions at undervalue. The proposed harmonized avoidance rules will have built-in features for the attainment of contractual finality, certainty and predictability in the market place so as to better attract investment inflows.
The study has made a threefold contribution to law. Firstly, with regards to insolvency law as it relates to and interacts with community law, the study has given emphasis on identifying the muse within the treaty founding a regional economic body that will inform and inspire the formulation of elements of harmonized transaction avoidance rules. Secondly, with regards to private international law, the study has focused on how to strike a careful balance in the relationship or interaction between domestic transaction avoidance rules on the one hand, and the harmonized avoidance rules at COMESA level with the avoidance rules of any other regional economic body or group to which each member state may belong, on the other hand. Thirdly, with regard to community law, the study’s importance and contribution to learning lies in the fact that it is the first one to undertake a comprehensive review, from a comparative angle, of COMESA’s readiness to undertake legal harmonization.
| Item Type: | Thesis |
|---|---|
| Creators: | Kaphale, K.E. |
| Contributors: | Name Role NTU ID ORCID |
| Date: | July 2024 |
| Rights: | The copyright in this work is held by the author. You may copy up to 5% of this work for private study, or personal, non- commercial research. Any re-use of the information contained within this document should be fully referenced, quoting the author, title, university, degree level and pagination. Queries or requests for any other use, or if a more substantial copy is required, should be directed to the author. |
| Divisions: | Schools > Nottingham Law School |
| Record created by: | Melissa Cornwell |
| Date Added: | 31 Mar 2025 15:12 |
| Last Modified: | 31 Mar 2025 15:14 |
| URI: | https://irep.ntu.ac.uk/id/eprint/53330 |
https://orcid.org/0000-0001-8285-2191Actions (login required)
 |
Edit View |
Statistics
Views
Views per month over past year
Downloads
Downloads per month over past year
