tegwick
11f2dc3a6d
Executes all remaining shared jurisdictions across both workplans: Germany/EU (deepened contract-law angle), US (deepened), UK (deepened), Argentina, India, China, Africa (South Africa + OHADA), and Asia-Pacific (Singapore, Japan, Australia) - 13 new history/ research artifacts. Highest-priority findings: - Australia's Unfair Contract Terms regime (expanded Nov 2023) covers standard-form contracts with any business under 100 employees/$10M turnover by default - the CUA is exactly such a contract, and most realistic Customers fall within this threshold. Unlike every other jurisdiction's consumer carve-out, this is not an edge case. - China requires a "foreign-related" contract even to select foreign governing law, subject to a vague public-interest override even then - confirms a dedicated China rider is needed for both the License/CUA and the Enforcement Partner Agreement, not a shared global clause. - India flatly prohibits advocate contingency fees (no exception gates, stricter than Germany) while explicitly permitting third-party litigation funding - the cleanest confirmation yet that the Litigation Funder/Local Counsel split-role model is both necessary and legal there. - Japan's Article 12 fee-splitting rule means even the split-role fallback needs jurisdiction-specific structuring - the first case where the workaround itself, not just the original mechanism, has an open compliance question. - Contingency Share ceilings vary widely where available: UK 50% (exact match), South Africa 25%, Argentina 35% (50% only with risk assumption), China 18% down to 6% on a sliding scale that shrinks as claims grow. - Recurring cross-jurisdictional pattern (Germany, EU, US via CCPA, Argentina): B2B governing-law/liability clauses are respected, but an individual/sole-proprietor Customer's consumer-protection status is the operative risk everywhere, not a one-off edge case. Updates specs/EnforcementNetworkConcept.md §8.1 with a full 12-jurisdiction findings table and three cross-cutting conclusions. Updates both V1C1 documents' Appendix A items (governing law, liability cap, data protection) with the most consequential findings. Both workplans now have only their human-gated synthesis tasks (T09-T10 / T10) remaining. Co-Authored-By: Claude Sonnet 5 <noreply@anthropic.com>
3.2 KiB
TREN Jurisdiction Research: Africa (Representative Jurisdictions)
Document status: Research artifact, Stage 0 (workplans/TREV-WP-0005-enforcement-network-research.md T07)
Not legal advice. Findings drawn from web research (searched 2026-07-29). Representative-jurisdiction survey, not exhaustive, per the workplan's own scoping caution.
1. South Africa: a clean statutory cap, close to but below the Licensor's original 50%
The Contingency Fees Act 66 of 1997 permits South African attorneys two contingency structures: (a) their normal fee, contingent on success, with no statutory cap on the fee amount itself; or (b) a "success fee" in addition to the normal fee, where the combined total may not exceed 25% (including VAT) of the capital sum recovered, or double the attorney's normal fee, whichever is lower. South African courts have invalidated contingency agreements that don't comply with the Act's structure.
Direct implication for TREN: South Africa is a clean, statutorily-confirmed single-role jurisdiction, but at a materially lower ceiling (25%, or double normal fees if lower) than the Licensor's proposed 50% — closer to the German/French continental pattern's outcome (via a different mechanism: a hard percentage cap rather than a narrow-gate restriction) than to the UK's 50% DBA ceiling. This is now the second jurisdiction (after China) where the realistic ceiling is well below 50%, not merely a different structural path to the same number.
2. OHADA: no contingency-fee finding — genuinely unresearched, not assumed
This pass found substantial material on OHADA's business-law harmonization (uniform acts directly enforceable in the 17 member states, a Common Court of Justice and Arbitration in Abidjan) but no specific information on quota litis or contingency-fee rules within the OHADA framework or its member states' individual bar rules. Given OHADA's member states are overwhelmingly Francophone and civil-law, the French pactum de quota litis prohibition (history/260729-TREN-Jurisdiction-Germany-EU.md §2) is a plausible analog — but this is an inference, not a confirmed finding, and should not be treated as researched. This is flagged honestly rather than papered over with an assumption.
3. Summary for the WP-0005 feasibility matrix (T10)
| Question | South Africa | OHADA zone |
|---|---|---|
| Direct lawyer contingency fee available? | Yes, capped at 25% (or double normal fee, if lower) | Not confirmed — plausible French-pattern restriction, not verified |
| Litigation funding regulatory status | Not confirmed in this pass | Not confirmed in this pass |
| Recommended TREN structure | Single-role at the 25%/double-fee cap | Treat as unresearched; do not assume single-role or split-role without dedicated follow-up |
4. Open items for T10 synthesis
- OHADA member-state contingency-fee rules require a dedicated follow-up pass before any recommendation — do not extrapolate from France without confirmation.
- South Africa's litigation-funding market maturity was not researched in this pass (only the attorney-fee cap was confirmed).
- Neither Nigeria nor Kenya nor Egypt (the other major economies the workplan flagged as needing their own research before use) were touched in this pass at all.