OHADA Adopts and Updates Laws on Arbitration and Mediation
On 23 and 24 November 2017, the Council of Ministers of OHADA (“L’Organisation pour l’Harmonisation en Afrique du Droit des Affaires” – OHADA) adopted three major tools aimed at favouring alternative dispute resolution mechanisms in African countries. More specifically, the Council of Ministers adopted (i) a new Uniform Act on Mediation; (ii) a revised Uniform Act on Arbitration; and (iii) updated rules of arbitration of the Common Court of Justice and Arbitration (the CCJA).
OHADA is an international organization comprised of 17 West and Central African countries* whose goal is to promote regional economic development through the harmonization of its Member States’ business laws.
Harmonization is mainly achieved through so-called Uniforms Acts which compile all relevant legal norms in specific areas of business. Those Uniforms Acts are directly applicable in OHADA’s Member States. As of today, OHADA has adopted 9 Uniforms Acts in the fields of (i) General commercial law; (ii) Commercial companies and economic interest groups; (iii) Securities; (iv) Debt recovery; (v) Insolvency; (vi) Arbitration; (vii) Accounting; (viii) Contracts for the carriage of goods; and (ix) Cooperative companies. In addition, OHADA also relies on specific institutions, such as the CCJA which acts as a Supreme Court in all disputes regarding the application of the Uniform Acts. The CCJA also acts as an arbitral institution and as support judge in arbitration disputes.
In their decisions of 23 and 24 November 2017, the Council of Ministers adopted or updated three major texts:
First of all, the OHADA Council of Ministers adopted a tenth Uniform Act on Mediation with the aim to foster alternative dispute resolution mechanisms.
Second, the Council of Ministers amended the existing Uniform Act on Arbitration which (among other things) now:
– Explicitly allows national courts to have jurisdiction in cases where (despite the existence of an arbitration agreement) (i) the arbitral tribunal has not yet been established and (ii) the arbitration agreement is manifestly void or inapplicable in the case at hand; or
– Provides clear procedural rules and limitation periods with respect to the proceedings leading to the annulment of arbitral awards.
Third and finally, the Council of Ministers revised the CCJA’s existing arbitration rules by now providing (among other things) for third party intervention and multi-party arbitration proceedings as well as enhancing arbitrators’ ethical duties and obligations.
The new and amended texts will enter into force on the 90th day following their publication in the OHADA’s Official Journal**.
* Benin; Burkina Faso; Cameroon; Central African Republic; Chad; Comoros; Côte d’Ivoire; Democratic Republic of Congo; Equatorial Guinea; Gabon; Guinea; Guinea-Bissau; Mali; Niger; Republic of the Congo; Senegal; and Togo.
** As of today, I am unable to tell whether the three texts have already been published in the OHADA’s Official Journal. If one of you has the answer to that, please do not hesitate to send me an email or post a comment below. Thanks in advance. UPDATE (22 December 2017): The three texts have been published in the OHADA’s Official Journal on 15 December 2017. They will enter into force on 15 March 2018.