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>
30 lines
3.2 KiB
Markdown
30 lines
3.2 KiB
Markdown
# TREN Jurisdiction Research: Africa (Representative Jurisdictions)
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**Document status:** Research artifact, Stage 0 (`workplans/TREV-WP-0005-enforcement-network-research.md` T07)
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**Not legal advice.** Findings drawn from web research (searched 2026-07-29). Representative-jurisdiction survey, not exhaustive, per the workplan's own scoping caution.
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---
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## 1. South Africa: a clean statutory cap, close to but below the Licensor's original 50%
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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.
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**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.
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## 2. OHADA: no contingency-fee finding — genuinely unresearched, not assumed
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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.
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## 3. Summary for the WP-0005 feasibility matrix (T10)
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| Question | South Africa | OHADA zone |
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| Direct lawyer contingency fee available? | Yes, capped at 25% (or double normal fee, if lower) | Not confirmed — plausible French-pattern restriction, not verified |
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| Litigation funding regulatory status | Not confirmed in this pass | Not confirmed in this pass |
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| 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 |
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## 4. Open items for T10 synthesis
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- OHADA member-state contingency-fee rules require a dedicated follow-up pass before any recommendation — do not extrapolate from France without confirmation.
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- South Africa's litigation-funding market maturity was not researched in this pass (only the attorney-fee cap was confirmed).
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- 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.
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