A. LEGISLATION AND RULES
A.1 Legislation
On 17 October 1993, 14 African states signed the Treaty of Port Louis establishing the Organization for the Harmonization of Business Law in Africa (OHADA).[1] That treaty was revised on 17 October 2008.[2] Currently, 17 jurisdictions have ratified the OHADA Treaty.[3]
On 15 March 2018, a new OHADA arbitration framework came into force. In accordance with that revised arbitration framework, the Uniform Act on Arbitration Law (UAA) and the Arbitration Regulation of the Common Court of Justice and Arbitration (“CCJA Regulation”) supersede previous versions dated 1999 and 1996. These new acts are in line with the rules and regulations of key arbitration-friendly jurisdictions and leading arbitral institutions.
A.1.1 Two different bodies of rules leading to two different arbitration systems
In the OHADA area, there are two different set of rules, the UAA and the CCJA Regulation, leading to two different arbitration systems.
First, there is CCJA arbitration. The CCJA is (i) a supranational court aimed at ensuring that the Uniform Acts are interpreted and applied uniformly and (ii) an arbitral institution. If the parties submit a request for arbitration to the CCJA as the arbitral institution, the arbitration will be governed by the CCJA Regulation and articles 21-25 of the OHADA Treaty. The main advantage of the CCJA arbitration is that the award issued by a CCJA arbitral tribunal will be enforced throughout the OHADA area.
The second arbitration systems, which may be ad hoc or institutional arbitration — an institution other than the CCJA — is governed by the UAA subject to various conditions. Pursuant to the OHADA Treaty, the UAA is an integral part of the national legislation of the member states without the necessity of further action by national parliaments.[4] That act applies to arbitration when the seat of the arbitral tribunal is located in one of the 17 member states.[5] With respect to the enforcement stage, unlike the CCJA Regulation, the parties will have to seek enforcement of their award in each OHADA member state.
A.1.2 Investment dispute arbitration
Since the 2018 reform, the CCJA Rules and the UAA apply to investment arbitrations. Article 3 of the UAA, and articles 2.1 and 5.1(b) of the CCJA Rules provide that an arbitration may be based on an instrument related to an investment, in particular an investment code or bilateral or multilateral investment treaty.
Such provisions are more than welcome in the context of the future investment protocol of the African Continental Free Trade Area which could refer to arbitration as a dispute settlement system between African investors and African states.[6]
A.1.3 Powers of the arbitral tribunal in line with standards of international best practice
Kompetenz-kompetenz principle:
The UAA[7] and the CCJA Regulation[8] ensure the kompetenz-kompetenz principle, under which an arbitral tribunal has jurisdiction to rule on its own jurisdiction. According to article 11 of the UAA, if no reference has yet been made to the arbitral tribunal or if no request for arbitration has been submitted, the national court shall decline jurisdiction unless the arbitration agreement is manifestly invalid and if it is manifestly inapplicable. Article 10.4 of the CCJA Regulation provides a similar safeguard: an arbitral tribunal has the power to rule on its own jurisdiction and on the admissibility of the request for arbitration. The kompetenz-kompetenz principle is generally well enforced by state courts or the CCJA.
Pre-arbitration dispute resolution:
Article 8-1 of the UAA and article 21-1 of the CCJA Regulation address multitier clauses. Those articles provide the arbitral tribunal with the power to verify, if the parties so request, that the parties fulfil any preliminary steps (such as mediation or negotiation) stated in the dispute resolution clause of their agreement. If that step was disregarded, the arbitral tribunal shall suspend the proceedings for a time period that it deems appropriate to allow the parties to perform that step.
Complex arbitration:
Under the CCJA Regulation, a party may be forced to join or may voluntarily join arbitration proceedings provided that it meets the requirements set forth in articles 8.1 and 8.2 of the CCJA Regulation. Similarly, under articles 8.3 and 8.4 of the CCJA Regulation, the arbitral tribunal may consolidate several related proceedings initiated under separate arbitration agreements and/or involving the same parties.
A.1.4 Efficiency of the proceedings
Arbitrator’s duty of independence and impartiality:
The arbitrator’s duty of independence and impartiality has been strengthened by the new OHADA arbitration framework. Under article 4.1 of the CCJA Regulation and article 7 of the UAA, an arbitrator shall disclose, at any point in the proceedings, any and all circumstances that might give rise to any doubt about their independence and impartiality.
Prompt recognition and enforcement of award:
The UAA and the CCJA Regulation impose a strict time limit on state courts and the CCJA to rule on recognition and enforcement of arbitral awards. Pursuant to article 31 of the UAA, if a national court has failed to issue a decision 15 days after the request for recognition and enforcement was filed, the arbitral award will be deemed to be recognized and enforced by the state courts.
Similarly, the CCJA must rule on the request for enforcement within a 15 day time limit and must decide on any provisional measures in the context of enforcement proceedings within three days.[9]
Enforcement of arbitral award under the CCJA Rules and the Uniform Act of Arbitration:
Under the UAA, there is no uniform enforcement of an arbitral award across all OHADA member states. An award creditor must request the competent state court in each state to issue an order of exequatur converting the award into an order enforceable within the domestic jurisdiction.
In contrast, under the CCJA Regulation, an award may be enforceable within the whole territory of the 17 OHADA member states. The CCJA award is enforced by an order of exequatur issued by the CCJA and such order is binding and enforceable in the OHADA area. This is one significant benefit of CCJA arbitration.
A.2 Institutions, rules and infrastructure
The main arbitral institutions in the OHADA area are the CCJA, headquartered in Abidjan, Côte d’Ivoire; the Court of Arbitration of Côte d’Ivoire (CACI), headquartered in Abidjan, Côte d’Ivoire; and the Centre d’Arbitrage du Groupement Interpatronal du Cameroun (GICAM), headquartered in Douala, Cameroon.
Arbitrations administered under CACI and GICAM are governed respectively by the CACI Rules or the GICAM Rules as well as by the UAA provided that the seat of arbitration is within the OHADA territory. As above-mentioned, CCJA arbitrations are governed by the CCJA Regulation and the OHADA Treaty (articles 21-25).
Since 2017, CACI, GICAM and the CCJA accept international investment disputes.[10] GICAM and the CCA have included such provisions under their rules.[11]
B. CASES
B.1 Even though the underlying contract has expired, the arbitration clause is still valid due to the parties’ intent to continue their relationship under the same terms and conditions
In Société Brasserie BB Lome SA v. Société CTC-ADDRA “All Deal Driving Real Negoce Arragement”,[12] the CCJA found that an arbitration clause still applied even though the underlying contract expired since the parties had continued their long term business relationship arising from that contract.
In that case, the parties concluded a contract including an arbitration agreement on 1 July 2011. That contract was renewed on several occasions. On 31 December 2016, at the end of the last renewal, they continued their business relationship without concluding any amendment. A dispute arose between the parties and CTC-ADDRA brought a claim before the Lomé Tribunal of First Instance of First Class. Brasserie BB Lome challenged the jurisdiction of the Lomé Tribunal, and then of the Court of Appeal, on the ground that the arbitration clause still applied to the dispute since the business relationship, from which the dispute arose, continued despite the expiration of the contract. Both the Tribunal of First Instance and the Court of Appeal held that they had jurisdiction over the dispute due to the expiration of the contract. The CCJA overturned the decision of the lower court, finding that pursuant to the arbitral agreement, an arbitral tribunal has the power to determine its own jurisdiction on the dispute at stake, and therefore, national courts were not able to settle the dispute.
B.2 It cannot be inferred from the parties’ failure to appoint a sole arbitrator in accordance with an arbitration clause, that the parties no longer agree on the number of arbitrators
In Etablissements ENACAM v. Société Générale Cameroun et Centre de Médiation et d’Arbitrage du Groupement Interpatronal du Cameroun (GICAM),[13] the CCJA held that when parties agree on the number of arbitrators, but disagree on the name of the arbitrator to be appointed, an arbitral institution cannot infer that the parties no longer agree on the number of arbitrators.
In that case, the parties concluded a contract containing an arbitration agreement under which any dispute arising out of or in connection with the underlying contract shall be settled by a sole arbitrator appointed by the parties, under the GICAM Rules. As the parties failed to appoint the sole arbitrator, GICAM applied article 9.3 of the rules. That article provides that when the parties disagree on the number of arbitrators, GICAM shall appoint a sole arbitrator unless it considers that the appointment of three arbitrators is more appropriate to the dispute. GICAM decided to appoint three arbitrators and explained that it could be inferred from the parties’ failure to appoint a sole arbitrator that the parties no longer agreed on the number of arbitrators. The award-debtor, Etablissement ENACAM, sought annulment of the award on the ground that the composition of the arbitral tribunal was not in accordance with the agreement of the parties. The CCJA held that by imposing three arbitrators, GICAM infringed the autonomy of the parties to agree to settle their dispute by a sole arbitrator. Therefore, the judges annulled the award.
[1] Treaty on Harmonization of Business Law in Africa, Port Louis, Mauritius, 17 October 1993.
[2] Amended Treaty on Harmonization of Business Law in Africa, Quebec, Canada, 17 October 2008.
[3] Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Congo, Côte d’Ivoire, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, Republic Democratic of Congo, Senegal, Chad, and Togo.
[4] Article 10 of the OHADA Treaty.
[5] Article 1 of the UAA.
[6] Article 6 of Annex I of the Protocol on Investment to the Agreement Establishing the African Continental Free Trade Area, Zero Draft.
[7] Article 11 of the UAA.
[8] Article 10.3 and 10.4 of the CCJA.
[9] Articles 30.2 and 30.3 of the CCJA Regulation.
[10] Article 3 of the UAA; articles 2.1 and 5.1(b) of the CCJA Rules.
[11] Article 4.2 of the GICAM Arbitration Rules; articles 2.1 and 5.1(b) of the CCJA Rules.
[12] CCJA, No. 002/2022, 20 January 2022.
[13] CCJA, No. 214/2021, 23 December 2021.
