OHADA Arbitration, Recent Developments and the Continued Need to Evolve Practices

The Organisation for the Harmonization of Business Law in Africa (Organisation pour l’Harmonisation en Afrique du Droit des AffairesOHADA), which is currently comprised of 17 Member States (Benin, Burkina Faso, Cameroon, Central African Republic, Chad, the Federal Islamic Republic of the Comoros, Congo, Ivory Coast, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Niger, Senegal, Togo and The Democratic Republic of Congo), has existed for more than 20 years now. OHADA arbitration, the instruments of which were promulgated more than 15 years ago, has been a very successful initiative, promoting the rule of law in the OHADA Member States.

The OHADA arbitration system is dual:

  • On the one hand there is the possibility for ad hoc arbitration under the Uniform Act on Arbitration (UAA) adopted in 1999. The UAA either filled the gap for the Member States that did not have a legal text on arbitration, or replaced the existing local national laws in the Member States that had out-dated arbitration laws.
  • On the other hand, there is the possibility for institutional arbitration under the rules of the Common Court of Justice and Arbitration (CCJA), a supranational court of nine judges of OHADA Member States, based in Abidjan, Ivory Coast. The CCJA is the leading arbitral institution in francophone Western and Central Africa. Apart from its role in administering arbitration proceedings, the CCJA also has a judicial function: it decides upon cassation appeals against decisions of national courts of OHADA Member States in disputes of commercial nature.

Recently, a revision process of the regulatory framework of OHADA arbitration was introduced, and a partnership between the CCJA and the ICC was launched, aiming to enhance cooperation between the two organisations, and to promote and standardise the practice of CCJA arbitration.

In an article published in Transnational Dispute Management in October 2016, and which can be accessed here, Athina Fouchard Papaefstratiou highlights certain particularities of the OHADA arbitration system, be it with respect to the UAA, the CCJA arbitration rules or the interplay between the two, which may be worth re-assessing in the current reviewing process; or practices of the CCJA as an arbitration institution, which should be revised in the context of its partnership with the ICC.

For a more detailed presentation on OHADA arbitration, you may refer to the treatise “International Arbitration and Corporate Law: An OHADA Practice”, by Benoit Lebars.

By Athina Fouchard Papaefstratiou, Counsel, Lazareff Le Bars