MEASURES TO ENSURE BETTER PERFORMANCE OF DUTIES BY DIRECTORS UNDER THE OHADA UNIFORM ACT ON COMMERCIAL COMPANIES: PROSPECTS AND CHALLENGES

Abstract

The OHADA Uniform Act on Commercial Companies and Economic Interest Groups, like other corporate laws in the world seeks to ensuring and enhancing brilliant corporate performance within the OHADA zone. To achieve this, the OHADA Legislator has included in the Uniform Act on Commercial companies provisions that are obligations or duties imposed on corporate directors. To ensure that corporate directors perform their duties better, the Uniform Act contains measures aimed at controlling and supervising directors while performing their duties. However, global events concerning high profile corporate failures such as Enron, Fat Cat, and AT&T have not only put to question the effectiveness of directors duties but equally the effectiveness of the supervision and control mechanism put in place to ensure better performance of duties. This work therefore looks at how the OHADA legislator responds to these issues, by examining the effectiveness of the measures adopted to keep directors under control when performing their duties, bring out the potentials and limitations of these measures and make proposals that will guarantee it effectiveness. To do this, we used the analytical approach where we analyzed those Provisions of the Uniform Act on commercial companies that are concerned with control and supervision of directors, other legal texts, court decisions and textbooks relating to directors duties.  We found that the supervision and control techniques under the Uniform Act are effective but can only be guaranteed if directors are not allowed to accumulate offices and functions, ensure proper separation of management and control, improving the audit process and including other external measures such as banks and insurance companies to enforce the performance of duties by directors.