L’assainissement des activités commerciales par le droit OHADA des procédures collectives

Abstract The objective of attracting investment advocated in the preamble to the Organization for the Harmonization of Business Law in Africa (OHBLA) treaty is accompanied by a number of measures designed to improve the business environment, and contained in various uniform acts. Among these measures, those relating to the law of collective proceedings are particularly noteworthy, as they sometimes provide an opportunity to detect and exclude from the economic circuit unviable companies and players who have generally behaved in a way that is contrary to business ethics. In this vein, this study aims to assess the contribution of OHBLA law on collective proceedings for the settlement of liabilities to the reorganization of commercial activities. Regardless of whether one is dealing with preventive or curative insolvency proceedings, a number of measures have been adopted to deal with situations that are likely to undermine a suitable business environment and provide security for investments. These means range from eliminating inefficient players to punishing unscrupulous ones. The inefficiency of the players is generally visible when the company becomes unproductive. If this unproductivity leads to suspension of payments or cessation of activities, the implementation of collective liquidation proceedings of assets will lead to the elimination of the company from the economic circuit, in order to prevent its continued existence from becoming a gangrene for the other players. Liquidation of assets at this level reflects the idea of purging the business world of entities, which, through their negligence, incompetence, or simply bad luck, have failed and are no longer economically efficient. Its purpose is to put an end to the company’s existence, to realize its assets by selling them in order to pay off its liabilities, and to maximize the value of the failing company’s assets in order to restore creditors’ rights as far as possible. A company’s inefficiency may be the fault of its directors. OHBLA insolvency law provides for measures leading to their permanent or temporary exclusion from the management of the company. Their replacement is possible, notably in rescue proceedings, through the composition agreement, which may, among other solutions for restructuring the company in difficulty, provide for their replacement. Moreover, when collective liquidation proceedings of assets is opened, the directors are automatically divested of the administration and disposal of the company’s assets for the duration of the proceedings. Sanction measures are aimed at reorganizing commercial activities, either through the general exclusion of seriously at fault actors from the commercial profession, or through the invocation of their liability. General exclusion from the commercial profession, embodied in OHBLA bankruptcy law by personal bankruptcy, is a particularly serious sanction, based on behaviour deemed intolerable by the professional at fault. Its seriousness stems from the fact that it entails a general ban on trading, controlling, or managing any commercial enterprise, the deprivation of voting rights, as well as a ban on holding an elective office, and a ban on exercising any administrative, judicial, or professional representative function. In so doing, it removes the interested party not only from the practice of the commercial profession, but also from a number of activities requiring a certain degree of probity. On the contrary, in order to improve the business climate, the liability of the indelicate trader is based on criminal conviction or compensation for harm caused to the company or to third parties. In such cases, the guilty party is held liable for his or her actions on the basis of liability regimes specific to the law governing companies in difficulty, notably the extension of collective proceedings, liquidation of liabilities, or bankruptcy, which helps to make him more moral.