The OHADA Arbitration Act is potentially applicable for arbitrations with their seat in Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, the Democratic Republic of Congo (ex-Zaire), the Ivory Coast, Gabon, Guinea, Guinea-Bissau, Equatorial Guinea, Mali, Niger, the Republic of the Congo (Congo-Brazzaville), Senegal, Chad and Togo.
The OHADA (Organisation pour l’harmonisation en Afrique du Droit des Affaires) Treaty is one of the legal reforms in Africa aimed at promoting a stable business environment and the expeditious resolution of disputes, by harmonising commercial law within its seventeen (17) member States with a set of Uniform Acts.
One of these acts is the OHADA Uniform Arbitration Act, with provisions on the administration of arbitral proceedings and the execution of arbitral awards.
The most interesting feature of the Uniform Arbitration Act is that it has unified the arbitration laws of its signatories. The Act may apply to arbitrations which have their seat in one of the signatory States. Pursuant to Article 35, which mentions that the Uniform Act applies to “any arbitration” in the signatory States, both international and domestic arbitrations are included within its ambit. These may be either institutional arbitrations administered by the Common Court of Justice and Arbitration (Cour Commune de Justice et d’Arbitrage), located in Abidjan, the commercial heart of francophone West Africa, or ad hoc arbitrations taking place in the OHADA member States.
Another important aspect of the OHADA Uniform Arbitration Act is the regime for the challenge of arbitration awards. Under Article 25, awards rendered under the Uniform Arbitration Act are not subject to appeal in domestic courts, but subject to a petition for annulation (a far narrower challenge) under competent domestic judges, whose decisions remain subject to the approval of the Common Court of Justice in Abidjan. Requests for revision or petitions from third parties may only be submitted to the arbitral tribunal itself.
The Uniform Arbitration Act also provides a favourable regime for the recognition and enforcement of awards. This is useful considering that not all of the OHADA member States are members of the 1958 New York Convention for the Recognition and Enforcement of Arbitral Awards (Equatorial Guinea, the Republic of the Congo, Togo and Guinea-Bissau are not Parties to the New York Convention).
Articles 30 and 31, dealing with the execution of arbitral awards, provides that execution is conditional only upon the acquisition of an exequatur, upon simple proof of the award’s existence. Additionally, recognition and exequatur may be refused only when an award is contrary to the international public policy of the member States.
The OHADA Uniform Arbitration Act is a positive development towards a stable, uniform and transparent legal regime for arbitrations in West Africa. The key features of the Act examined here, combined with the limited costs for the procedures, creates a competitive legal environment that encourages the resolution of disputes of local relevance under the Uniform Arbitration Act, instead of resorting to arbitration before institutions in Europe or further afield.
- Anastasia Choromidou, Aceris Law SARL