Reform in West and Central Africa

new arbitration and mediation laws adopted by OHADA

Background on OHADA

The Organisation pour l’harmonisation en Afrique du droit des affaires (“OHADA”) is an intergovernmental organization established in 1993, with a mission to harmonize business law in Africa in order to improve legal and judicial security for investors in Africa. Currently, OHADA comprises 17 African Member States: Benin, Burkina Faso, Cameroon, Central African Republic, Côte d’Ivoire, Congo, Comoros, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, the Democratic Republic of Congo (DRC), Senegal, Chad and Togo.

As a way of increasing legal predictability, OHADA Member States strive for legal integration by the adoption of Uniform Acts. Following the adoption of the Uniform Act on Mediation, there are now ten Uniform Acts addressing the following topics:

  • Insolvency law
  • General commercial law
  • Law of securities
  • Contracts for the carriage of goods by road
  • Commercial companies and economic interest groups
  • Law of cooperatives
  • Simplified recovery procedures and measures of execution
  • Organization and harmonization of accounting for enterprises
  • Arbitration law
  • Mediation law

In order to ensure uniform and consistent interpretation and application of its Uniform Acts, OHADA created the Common Court of Justice and Arbitration (the “CCJA”). The CCJA is a supranational court that, in addition to its judicial function, also acts as a court of arbitration.

Recent Reform

On November 23 and 24, 2017, the Council of Ministers of OHADA approved the revised Uniform Act on Arbitration Law and the new Uniform Act on Mediation. These Acts will come into force on March 15, 2018.

What has changed?

OHADA has revised the Uniform Act on Arbitration Law. Here is a summary of some of the changes:

  • If a party refers to the Member State court for appointment of an arbitrator, such appointment must be made within 15 days from the date of the referral unless the law of the Member State provides a shorter time frame. The court’s decision cannot be appealed.
  • The arbitrator has an obligation to disclose to the parties any circumstances which could create legitimate doubt about the arbitrator’s impartiality or independence.
  • A party wishing to challenge an arbitrator’s appointment can do so within 30 days from the discovery of the facts that prompted the challenge. The challenge must be decided by a Member State judge within 30 days and can be appealed to the CCJA. However, the challenge is only admitted for a cause revealed after his/her appointment.
  • If no request for arbitration has been made or the arbitral tribunal has not yet been seized, the Member State court must declare itself to be incompetent unless the arbitration agreement is manifestly null or manifestly inapplicable to the case.
  • The parties may now agree to waive an appeal for the annulment of the arbitral award provided that it is not contrary to international ordre public.

OHADA also adopted the revised Arbitration Rules which provide for procedures on forced intervention, voluntary intervention, multiple parties, and multiple contracts.

What is new?

OHADA adopted the new Uniform Act on Mediation. The provisions found in the new Act are fundamental principles of mediation, some of which are:

  • Status of the mediator – The mediator must remain independent and impartial.
  • Exchanges between the mediator and the parties – The mediator can disclose information received from one party to another party unless the party gives the information under an express condition that it remain confidential.
  • Confidentiality – All information must remain confidential unless the parties agree otherwise, the disclosure is required under law, or disclosure is necessary for the execution of the resulting agreement from mediation.
  • Incompatibilities – Unless otherwise agreed by the parties, the mediator cannot be an arbitrator or an expert in a dispute that is the subject of the mediation.

The reforms implemented by OHADA ought to provide greater legal certainty to parties doing business in Africa by providing alternative dispute resolution mechanisms that can save aggrieved parties precious time and money. This in turn can contribute to increased economic activities in West and Central Africa.

For more on the topic of arbitration, please see our past articles:

Arbitrate this: the applicability of arbitration exclusion in the Recast Brussels Regulation

Uniform Rules For the Enforcement of Foreign Judgments: next year perhaps?

This article is for informational purposes only and does not constitute legal advice. If you wish to discuss your issue with a lawyer, contact Martin today.  613-747-2459 ext.308, [email protected]