A. LEGISLATION AND RULES
A.1 Legislation
International arbitration continues to be governed by the Treaty on Harmonization of Business Law in Africa (“OHADA Treaty“), the Uniform Act on Arbitration Law (UAA) and the Arbitration Regulation of the Common Court of Justice and Arbitration (“CCJA Regulation“).
A.2 Institutions, rules and infrastructure
While arbitration proceedings continue to be governed by the CCJA Regulation, the CCJA amended its Internal Rules on Arbitration (“CCJA Internal Rules“) to ensure a better separation between the CCJA dual role as an arbitral tribunal and as the court of last resort for OHADA law. This dual role has raised many concerns among practitioners and economic players since the CCJA can administer arbitration proceedings under the CCJA Arbitration Regulation and serves as the authority responsible for annulling arbitral awards.
Two main criticisms were raised about the organization of the CCJA. The first criticism was about the increase in the risk of conflicts of interest of the judges of the CCJA in administering the arbitration proceedings, and in ruling on an application for setting an arbitral award issued by the CCJA arbitral tribunal. Although the OHADA legislation provides for a general secretariat for the administration of arbitration proceedings, the CCJA Internal Rules dated 2 June 1999 show that the Court of the CCJA (“Court“) was the real authority for administering arbitration proceedings. The second criticism concerned the lack of transparency regarding the role of the general secretariat. It was seen as an empty shell acting under the direction of the Court. A role at odds with that of other arbitration centers, such as the LCIA or ICC, where the general secretariat is a key figure in the administration of the arbitration proceedings.
The amended CCJA Internal Rules have considered these criticisms. The general secretariat has become a key figure in the administration of arbitration governed by the CCJA Regulation, and a committee to supervise arbitration proceedings has been set up. This new division of roles improves the separation of the CCJA’s functions as the supreme court in the OHADA area and as an arbitration center.
Whereas in the rules of procedure of 2 June 1999, the Court was the authority responsible for administering arbitrations[1], the rules of procedure of 17 October 2023 make the general secretariat “the administrative and financial manager of the [Arbitration] Centre, which it manages on a day-to-day basis […]”[2]. The general secretariat no longer assists the Court but administers the arbitration proceedings.
In this respect, article 6.1 of the new rules of procedure clearly details the missions of the general secretariat. For instance, the general secretariat has and manages its own management teams[3]. It is also responsible for coordinating the CCJA arbitration center’s activities, and, with the assistance of the monitoring committee (“the Comité de Suivi des Procédures“), for ensuring the proper administration and running of arbitration proceedings[4]. Last, it initiates and ensures the execution and promotion of the CCJA arbitration center’s activities[5]. These illustrations illustrate the transfer of the Court’s responsibilities for the administration of the CCJA arbitration center and arbitration proceedings to the General Secretariat[6].
The general secretariat is also responsible for publishing the center’s data and publishing a report on its activities over the previous year, like reports produced by other arbitration centers. This mission is intended to make the center’s operations more transparent and increase its visibility.
In addition, the CCJA Internal Rules of 17 October 2023 set up the Comité de Suivi des Procédures whose mission is to: (i) verify, after receipt of the request for arbitration between the parties; (ii) confirm or appoint the arbitrators during an arbitration proceeding; (iii) forward to the arbitral tribunal files that have fully complied with the requirements of article 11.2 of the CCJA arbitration rules; (iv) to ensure the proper conduct of arbitral proceedings; (v) to rule on procedural incidents; (vi) to rule on the admissibility and merits of requests to challenge arbitrators; (vii) to examine draft awards in accordance with the provisions of article 23 of the CCJA Arbitration Rules; (viii) to propose to the Court any amendments to its CCJA arbitration rules[7]. Once again, these tasks are no longer carried out by the Court.
This new distribution of roles makes it possible to correct the structure of the CCJA’s arbitration center, which was the subject of much criticism, and to meet the requirements of a genuine arbitration center.
B. CASES
B.1 Supplementary jurisdiction of the CCJA for the application for setting aside an arbitral award due to the national court’s failure to rule within a three-month period
In a decision dated 13 July 2023, the CCJA annulled the decision of the Court of Appeal of Abidjan which set aside an arbitral award due to the court of appeal’s failure to rule within three months from its referral[8].
In this case, the Société Internationale d’Assurances Multirisques (“SICAM“) and the MCI Care Cote d’Ivoire (“MCI Care“) entered into an agreement by which the latter undertook to manage care insurance portfolio on behalf of the former. MCI Care was responsible for paying claims arising from the management of the said portfolios, in exchange for a commission and reimbursement of disbursements. A dispute arose between the parties, and MCI Care applied to the Arbitration Court of Cote d’Ivoire for the payment of FCFA 1,467,335,637. As the award was not in its favor, MCI Care appealed to the Abidjan court of appeal, which annulled the award. SIDAM applied to the CCJA for the annulment of the appeal decision. The CCJA annulled the decision on the grounds that the court of appeal failed to issue its ruling within the three-month period as stated under article 27 UAA. This article provides that “[t]he competent court rules within three months of its referral. If that court fails to rule within that time period, it is divested of the case and the action may be brought before the Common Court of Justice and Arbitration within the next fifteen days.”
As the UAA does not define the notion of “referral”, the CCJA established the starting point for the 3-month period to be taken into consideration under the Ivorian Code of Civil, Commercial and Administrative Procedure. Applying, in particular, article 140 paragraph 4 of this code[9] and article 45 paragraph 3[10] of the Law on Commercial Jurisdictions, the CCJA found that an Ivorian court can only start consider a case from the date of the first hearing, which is set by the claimant on his deed of referral or at the time of the court registration of the case. Therefore, the CCJA concluded that the notion of act of referral (acte de saisine) provided for in article 27 of the UAA must be understood, in the case of Côte d’Ivoire, as the date on which the national court can legally begin considering the case, i.e. the date of the first hearing. As this was set for 23 December 2021, the court of appeal should have issued its decision on 23 March 2022. As the decision was rendered on 24 March 2022, the CCJA ruled that the court of appeal infringed article 27 of the UAA, and therefore, the decision was annulled.
B.2 Autonomy of the arbitration clause
In the decision dated 26 January 2023, the CCJA held that an arbitration agreement was not affected by the termination of the underlying contract[11].
On 5 February 2019, the ECOWAS Bank for Investment and Development (“the EBID“), Mali Oil SA and the Sahelo-Saharan Bank for Investment and Trade in Mali (“the SBIT“) signed an agreement entitled “Management and Payment Mechanism Agreement”. On the same date, a loan agreement was signed between EBID and Mali Oil SA for FCFA 2,631,000,000. Mali Oil SA was required to set up a security mechanism, including the opening of an escrow account with a provision of FCFA 263,100,000. To this end, it opened an escrow account at SBIT.
Subsequently, Mali Oil SA, considered that it had fully reimbursed EBID, and requested SBIT to transfer the amount in the escrow account back. As SBIT refused, it brought the matter before the summary proceedings judge of the Bamako Commercial Court. The judge declined jurisdiction because the Management and Payment Mechanism Agreement contained an arbitration clause. On appeal, the court of appeal upheld its jurisdiction since the said agreement was terminated.
The CCJA quashed the decision on the grounds that the court of appeal had no jurisdiction to settle the dispute[12]. It held that, as the arbitration clause was independent of the main contract, the termination of the latter did not affect its existence or its validity. The CCJA applied the principle of the autonomy of the arbitration clause, considering that as such a clause was independent from the Management and Payment Mechanism Agreement, it was not affected by its termination. The arbitration clause had a validity and effectiveness of its own, which entitled an arbitral tribunal to have jurisdiction on disputes arising from a contract, even if the latter had been terminated.
B.3 Kompetenz-kompetenz principle
In a decision dated 15 June 2023, the CCJA upheld the ruling of the Court of Appeal of Ac, confirming the decision of the Commercial Court of Ac, which declined jurisdiction to settle a dispute due to an arbitration clause included in the contract at issue[13]. Applying the kompetenz-kompetenz principle, the CCJA referred the parties to arbitration.
In this case, the parties entered into a general loan agreement which included an arbitration clause to settle any disputes arising out of or in connection with this agreement. The clause provided that the arbitral tribunal would consist of three arbitrators and that the arbitration would be governed by the rules of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC).
Following a breach of contract by its co-contracting party, a party brought an action before the Commercial Court of Ac to obtain payment of the amount due pursuant to the general loan agreement.
Based on article 13 of the Uniform Arbitration Act (UAA), the defaulting party argued that the agreement at stake contained an arbitration clause and therefore, the commercial court did not have jurisdiction to settle the matter. Article 13 UAA stipulates that: “when a dispute subject to arbitration proceedings under an arbitration agreement is brought before a State court, the latter shall, if one of the parties so requests, declare itself incompetent”. It sets forth the kompetenz-kompetenz principle, according to which an arbitral tribunal has jurisdiction to consider and decide any disputes regarding its own jurisdiction.
Applying this principle, the CCJA confirmed the decision of the Commercial Court of Ac, which declined jurisdiction in favor of a SCC arbitral tribunal.
B.4 Kompetenz-kompetenz principle (2).
On 26 October 2023, the CCJA issued a decision interpreting a previous decision dated 23 June 2023 annulling a partial arbitral award[14]. The claimant considered that the decision of 23 June 2023 affirmed the arbitral tribunal’s lack of jurisdiction to settle the dispute between it and its counterparty, and therefore the termination of the arbitral proceedings, whereas both the respondent and the arbitral tribunal considered that the arbitral proceedings continued despite the annulment of the partial award.
The decision of 23 June 2023 criticized the arbitral tribunal for having deferred consideration of the objections to jurisdiction based on Beninese national and WAEMU[15] public policy grounds to a later stage. One of the objections in question concerned whether the dispute was arbitrable within the meaning of article 2 of the UAA[16].
Although in its first decision the court indicated that the tribunal should rule on the arbitrability of the dispute before proceeding further with the arbitration proceedings, it considered that the said decision could not be interpreted as declaring the arbitral tribunal incompetent to settle the dispute.
First, the court pointed out that neither of the parties had raised the issue of the arbitral tribunal’s lack of jurisdiction before it. Second, the court ruled that, in accordance with the kompetenz-kompetenz principle, only the arbitral tribunal already constituted was empowered to rule on its jurisdiction.
As a result, only the partial award was set aside, and the arbitration proceedings were still in progress. However, the arbitral tribunal had to settle the question of its jurisdiction before proceeding further.
[1] Article 1, point 1 of the CCJA Internal Rules about arbitration, 2 June 1999: “The Court deals with matters relating to arbitration proceedings conducted by it under Title IV of the Treaty on the Harmonization of Business Law in Africa and Article 1 of the Arbitration Rules of the OHADA Common Court of Justice and Arbitration.”
[2] Article 6.1 du Règlement intérieur de la CCJA en matière d’arbitrage, 17 Octobre 2023.
[3] Article 6.1-4 du Règlement intérieur de la CCJA en matière d’arbitrage, 17 Octobre 2023.
[4] Article 6.1-6 du Règlement intérieur de la CCJA en matière d’arbitrage, 17 Octobre 2023.
[5] Article 6.1-14 du Règlement intérieur de la CCJA en matière d’arbitrage, 17 Octobre 2023.
[6] Article 2 du Règlement intérieur de la CCJA en matière d’arbitrage, 2 Juin 1999.
[7] Article 7.1 du Règlement intérieur de la CCJA en matière d’arbitrage, 17 Octobre 2023.
[8] CCJA, SIDAM v. MCI Care Cote d’Ivoire, No. 171/2023, 13 July 2023.
[9] Article 140 paragraph 4 of the Code of Civil, Commercial and Administrative Procedure: “In any events, the court must rule within a maximum of 6-months period from the first hearing”.
[10] Article 45 paragraph 3 of the Law on commercial jurisdictions :”In any events, the judgment is issued within three months of the first hearing.”
[11] CCJA, Banque Sahelo-Saharienne pour l’investissement et le commerce v. Mali Oil SA, No. 012/2023, 26 January 2023.
[12] The CCJA found that by upholding its jurisdiction, the court of appeal infringed article 23 of the OHADA Treaty which provides :”Any national court of a State Party before which a dispute which the parties had agreed to settle by arbitration is brought shall upon the request of one of the parties declare it lack of jurisdiction and, where applicable, refer the matter to Arbitration, in accordance with the present Treaty”
[13] CCJA, Scania Credit AB – SA v. Perform World – SA, No. 140/2023, 15 June 2023.
[14] CCJA, Société Béninoise d’Energie Electrique et Etat du Benin v. Société Innovent Benin SA, No. 174/2023, 26 octobre 2023.
[15] West African Economic and Monetary Union
[16] Article 2 UAA provides :”Any natural or legal person may resort to arbitration with respect to any rights that may be freely disposed of. States and other local governments as well as State-owned entities may also be parties to arbitration without being able to rely on their national laws to contest the arbitrability of the dispute, their capacity to be parties to arbitration or the validity of the arbitration agreement.”
