3rd year no 08 Price: 1000 FCFA 15 May 1999 Official Journal ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA OHADA Permanent Secretariat: B.P. 10071 Yaounde (Cameroun) - Tel.: (237) 221.09.05 - Fax. : (237) 221.67.45 S U M M A R Y Pages 1 - UNIFORM ACT ON ARBITRATION 2 2 - RULES OF ARBITRATION OF THE OHADA COMMON COURT OF JUSTICE AND ARBITRATION 9 3 - DECISION No. 004/99/CCJA OF FEBRUARY 9, 1999 ON ARBITRATION COSTS 21 4 - DECISION No. 004/99/CM OF MARCH 12, 1999 ON THE APPROVAL OF DECISION No. 004/99/CCJA OF FEBRUARY 3, ON COSTS 23 5 - APPENDIX DECISION No. 004/99/CCJA 24 Translation subject to further correction (December 2016) 2 OFFICIAL JOURNAL OF THE ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA UNIFORM ACT ON ARBITRATION LAW Analytical Table Pages CHAPITRE I: SCOPE 3 CHAPTER II: CONSTITUTION OF THE ARBITRAL TRIBUNAL 3 CHAPTER III: THE ARBITRAL PROCEEDINGS 4 CHAPTER IV: THE ARBITRAL AWARD 5 CHAPTER V: APPEAL AGAINST THE ARBITRAL AWARD 6 CHAPTER VI: RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS 7 CHAPTER VII: FINAL PROVISIONS 7 Translation subject to further correction (December 2016) OFFICIAL JOURNAL OF THE ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA 3 The Council of Ministers of the Organization for the Harmonization of Business Law in Africa (OHADA), CHAPTER II CONSTITUTION OF THE Having regard to the Treaty on the Harmonization of ARBITRAL TRIBUNAL Business Law in Africa, in particular, Articles 2, 5 to 12 thereof; ARTICLE 5 Having regard to the Report of the Permanent Secretariat and comments by States Parties; Arbitrators shall be appointed, dismissed or replaced Having regard to the Opinion of December 3, 1998, of under the agreement of the parties. the Common Court of Justice and Arbitration; Absent such arbitration agreement, or where the Deliberated and adopted by unanimity of the States agreement does not sufficiently address every Parties present and voting the Uniform Act worded issue: as follows: a) In case of an arbitration with three arbitrators, each party shall appoint one arbitrator and the two CHAPTER I arbitrators thus appointed shall appoint a third SCOPE arbitrator; if a party fails to appoint the arbitrator within thirty (30) days of the receipt of a request ARTICLE 1 for that purpose from the other party, or if the two arbitrators fail to agree on the third arbitrator This Uniform Act shall govern any arbitration when within thirty (30) days of their appointment, the the seat of the arbitral tribunal is located in one of appointment shall be made upon request of a party the States Parties. by the competent judge in the State Party; b) In case of arbitration with a sole arbitrator, if the ARTICLE 2 parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the Any natural person or legal entity may resort to competent judge in the State Party. arbitration to assert the rights he freely holds. ARTICLE 6 States and other territorial public bodies, as well as public institutions, may equally be parties to arbitration The duties of an arbitrator may only be performed by without being able to invoke their own law to a natural person. contest the arbitrability of a dispute, their ability to enter into an agreement or the validity of the The arbitrator shall enjoy full exercise of his civil rights arbitration agreement. and shall remain independent and impartial vis-à-vis the parties. ARTICLE 3 ARTICLE 7 The arbitration agreement shall be submitted in writing, or by any other means permitting it to be evidenced, The arbitrator who accepts his mandate shall notably, by reference made to a document stipulating it. communicate his acceptance to the parties by any means in writing. ARTICLE 4 Where the arbitrator knows of any circumstance about The arbitration agreement shall be independent of the himself for which he may be challenged, he shall main contract. disclose this to the parties and may only accept his appointment with their unanimous and written Its validity shall not be affected by the nullity of such agreement. contract, and it shall be assessed according to the intention of both parties, without necessary reference to In case of dispute, and if the parties have not determined the procedure for challenging an arbitrator, a state law. the competent judge in the State Party shall rule on the The parties can always mutually agree to resort to an challenge. arbitration agreement, even when a hearing has already been initiated before another court. Translation subject to further correction (December 2016) 4 OFFICIAL JOURNAL OF THE ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA be raised before any defense on the merits of the case except His decision shall not be subject to any appeal. Any reasons for challenging an arbitrator must be where the facts on which it is based were revealed later. disclosed without delay by the party who intends to The arbitral tribunal may rule on its own jurisdiction challenge the arbitrator. in the award based on merits or in a partial award The challenge of an arbitrator shall only be subject to the appeal for annulment. admissible for reasons which became known after his appointment. ARTICLE 12 ARTICLE 8 Where the arbitration agreement does not set a time limit, the mandate of the arbitrators may not exceed The arbitral tribunal shall be composed of a sole six months as from the date on which the last arbitrator or a panel of three arbitrators. appointed arbitrator accepted the assignment. Where the parties designate the arbitrators in even numbers, the arbitral tribunal shall be completed The legal or agreed time limit may be extended by one arbitrator chosen either pursuant to the either by an agreement of the parties or at the request agreement of the parties, or, in the absence of such of one of them or of the arbitral tribunal, by the agreement, by the arbitrators appointed or, where competent judge in the State Party. they are unable to agree on the arbitrator, by the competent court in the State Party. The same shall ARTICLE 13 apply in case of challenge, incapacity, death, resignation or revocation of an arbitrator. When a dispute, for which an arbitral tribunal is seized under an arbitration agreement, is brought CHAPTER III before a state court, it shall, if a party so requests, THE ARBITRAL declare that it lacks jurisdiction. PROCEEDINGS Where the arbitral tribunal is not yet seized, the state ARTICLE 9 court shall also declare its lacks of jurisdiction, unless the arbitration agreement is clearly null and void. The parties shall be treated equally, and each party shall be given a full opportunity to assert his rights. In any event, the state court shall not automatically declare that it lacks jurisdiction. ARTICLE 10 However, the existence of an arbitration agreement The fact that the parties choose to submit themselves shall not preclude a state court, at the request of a to an institution, makes them bound by the party, in the event of a recognized and reasoned application of the Arbitration Rules of such emergency or when the award will be executed in a institution except where the parties expressly exclude State not party to OHADA, to order conservatory the application of certain provisions. and interim measures, insofar as these measures do not entail an examination of the merits of the dispute, The arbitral proceedings shall be binding as soon as for which only the arbitral tribunal is competent. one of the parties appeals to one or all of the arbitrators pursuant to the arbitration agreement, or, ARTICLE 14 failing such appointment, as soon as one of the parties initiates the procedure for the constitution of The parties may, directly or by reference to the arbitral tribunal. Arbitration Rules, determine the arbitration procedure; they may also subject such procedures to a procedural law of their choice. ARTICLE 11 Absent such agreement, the arbitral tribunal may The arbitral tribunal shall rule on its own jurisdiction conduct the arbitration as it deems appropriate. including on any issues concerning the existence or the validity of the arbitration agreement. In support of their pleas and arguments, the parties have the burden of alleging and adducing evidence Any objection to the jurisdiction of the tribunal shall to prove the facts of their their claims. Translation subject to further correction (December 2016) OFFICIAL JOURNAL OF THE ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA 5 After this date, no other claim can be introduced or any The arbitrators can invite the parties to provide them with explanations of the facts and to submit before arguments raised. them, by any legally admissible means, the evidence No remarks can be presented; neither can any piece of they believe will provide a solution to their dispute. evidence be submitted unless on the express written request of the arbitral tribunal. They cannot retain in in their ruling, the arguments, explanations or documents submitted ARTICLE 18 by the parties, except if they have been heard in the presence of both parties. The deliberations of the arbitral tribunal shall be secret. They shall not base their ruling on evidence they CHAPTER IV established ex propio motu without previously THE ARBITRAL AWARD inviting the parties to formulate their remarks. ARTICLE 19 Where the assistance of judicial authorities is necessary for the submission of evidence, the The arbitral award shall be made according to the arbitral tribunal can on its own or upon demand, procedure and forms agreed upon by the parties. request the assistance of the competent judge in the State Party. Absent such agreement, the award shall be made by a majority vote when the Tribunal is composed The party who knowingly abstains from from of three arbitrators. invoking without undue delay an irregularity and yet proceeds with the arbitration, is deemed to have ARTICLE 20 waived his right to object. The arbitral award shall contain: Unless agreed otherwise, the arbitrators shall equally be empowered to decide on any incidental - the full name of the arbitrator or arbitrators claims of verification of the authenticity of giving the award, documents or forgery. - the date of the award, ARTICLE 15 - the seat of the arbitral tribunal, - the full names and trade name of the parties, as well as their residence or registered office, The arbitrators shall rule on the merits of the - where necessary, the full names of attorneys or dispute pursuant to the rules of law chosen by the any person having represented or assisted the parties or, absent such choice, according to rules parties, chosen by them as the most appropriate, by taking - the statement of the respective claims, pleas and into consideration, where necessary, the arguments of the parties, as well as the stages of international trade practices. the procedure. They may also decide as amiable compositeur The reasons on which this award is based shall be when the parties have authorized them to do so. stated. ARTICLE 16 ARTICLE 21 The arbitral proceedings shall end with the expiry The arbitral award shall be signed by the arbitrator of the legal arbitration time limit, with the or arbitrators. exception of an agreed or ordered extension. However, if a minority of them refuses to sign the It may equally be terminated in case of an award, mention shall be made of such refusal and acknowledgement of the claim, discontinuation of the award shall have the same effect as if all the the proceedings, settlement or final award. arbitrators had signed it. ARTICLE 17 ARTICLE 22 The arbitral tribunal shall set the date on which the The award discharges the arbitrator from the dispute shall be deliberated upon. dispute. Translation subject to further correction (December 2016) OFFICIAL JOURNAL OF THE ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA 5 The arbitrator shall nevertheless have the power to interpret the award or to correct the material errors and omissions Translation subject to further correction (December 2016) 6 OFFICIAL JOURNAL OF THE ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA discovery of a fact likely to have a decisive influence affecting the award. and which, before the ruling of the award, was unknown to both the arbitral tribunal and the party requesting the Where he has omitted to rule on one portion of the review. claim, he may do so by rendering an additional award. ARTICLE 26 In the one or the other case mentioned above, the The annulment request shall only be admissible in request must be made within thirty (30) days the following cases: from the date of the notification of the award. The tribunal shall have a period of forty-five (45) - when the arbitral tribunal has ruled absent an days to give a ruling. arbitration agreement or on an agreement which is void or expired; If the arbitral tribunal cannot be reconvened, this power shall belong to the competent judge in the - when the arbitral tribunal was irregularly State Party. composed, or the sole arbitrator was irregularly appointed; ARTICLE 23 - when the arbitral tribunal ruled without As soon as the award is made, the dispute so conforming to the mandate it has been entrusted; settled is res judicata. - when the principle of adversary procedure has not ARTICLE 24 been respected; The arbitrators may grant provisional enforcement - when the arbitral tribunal has violated an of the award, if this has been requested, or may international public policy rule of the signatory- reject the request, by giving the reasons therefor. States of the Treaty; - when the award is not reasoned. CHAPTER V APPEAL AGAINST THE ARTICLE 27 ARBITRAL AWARD The request for annulment shall be admissible as ARTICLE 25 soon as the award is made; it shall cease to be admissible if it has not been made within one The award shall not be subject to any opposition, month of the notification of the award furnished appeal or appeal on points of law to the Supreme with an exequatur. Court. ARTICLE 28 It may be subject to a request for annulment, which must be lodged with the competent judge in Except where the provisional enforcement of the the State Party. award has been ordered by the arbitral tribunal, the exercise of the request for annulment shall stay The decision of the competent judge in the State execution of the award until such time that the Party may only be appealed on points of law competent judge in the State party makes a ruling. before the Common Court of Justice and Arbitration. This judge shall also be competent to rule on a dispute concerning the provisional enforcement. The arbitral award may become the object of an opposition by a third party before the arbitral ARTICLE 29 tribunal filed by any natural person or legal entity who had not been called and when the award In case of annulment of the arbitral award, it rests prejudices his rights. with the most diligent party, if he so wishes, to initiate a new arbitration proceedings in accordance It may also be subject to a request for a judicial with this Uniform Act. review before the arbitral tribunal due to the Translation subject to further correction (December 2016) OFFICIAL JOURNAL OF THE ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA 7 CHAPTER VI: RECOGNITION AND ENFORCEMENT ARTICLE 34 OF ARBITRAL AWARDS The arbitral awards made on the basis of rules ARTICLE 30 different from those provided for in this Uniform Act shall be recognized within the States Parties under the conditions provided for by international The award shall only be subject to enforcement by agreements possibly applicable and, in the absence virtue of an exequatur awarded by the competent of, under the same conditions as those provided in judge in the State Party. this Uniform Act. ARTICLE 31 CHAPTER VII Recognition and exequatur of the arbitral award FINAL PROVISIONS presume that the party which prevailed shall establish the existence of the award. ARTICLE 35 The existence of the arbitral award shall be established by the production of the original award This Uniform Act shall be the law governing any accompanied by the arbitration agreement or arbitration in the States Parties. copies of these documents meeting the conditions required for their authenticity. This Uniform Act shall only apply to arbitration proceedings arising after its entry into force. Where those documents are not written in French, the party shall submit a translation certified by a ARTICLE 36 translator registered on the list of experts established by the competent courts. This Uniform Act shall be published in the OHADA Official Journal and the States Parties. The recognition and the exequatur shall be denied It shall enter into force pursuant to the provisions of when the award is manifestly contrary to an Article 9 of the Treaty on the Harmonization of international public policy rule of the States Parties. Business Law in Africa. ARTICLE 32 The decision to reject the exequatur shall only be subject to appeal on points of law before the Common Court of Justice and Arbitration. The ruling granting the exequatur shall not be subject to any appeal. However, an appeal for nullity of the arbitral award shall automatically entail appeal against the decision on the exequatur within the limits of the referral of the competent judge of the State Party. ARTICLE 33 The rejection of the request for annulment shall bring, on its own right, the validation of the award as well as of the ruling granting the exequatur. Translation subject to further correction (December 2016) 8 OFFICIAL JOURNAL OF THE ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA Executed in Ouagadougou March 11, 1999 Republic of BENIN Republic of MALI [signed] [signed] M. Joseph H. GNONLONFOUN M. Amidou DIABATE BURKINA FASO Republic of NIGER [signed] [signed] M. Paul KIEMDE M. Issifou ABBA MOUSSA Republic of CAMEROON Republic of SENEGAL [signed] [signed] M. Laurent ESSO M. Serigne DIOP CENTRAL AFRICAN Republic Republic of CHAD [signed] [signed] M. Laurent GOMINA BAMBALI M. Mahamat LIMANE Republic of COTE-D’IVOIRE Republic of TOGO [signed] [signed] M. Kouakou BROU JEAN M. Bilokotipou YAGNINIM Translation subject to further correction (December 2016) OFFICIAL JOURNAL OF THE ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA 9 RULES OF ARBITRATION OF THE COMMON COURT OF JUSTICE AND ARBITRATION Table of Contents Arbitration Conduct. CHAPITRE I: POWERS OF THE COMMON COURT OF JUSTICE AND ARBITRATION IN ARBITRATION Article 1: Exercise by the Court of its Powers CHAPTER II: THE PROCEDURE FOLLOWED BEFORE THE COMMON COURT OF JUSTICE AND ARBITRATION Article 2: Mandate of the Court Article 3: Appointment of Arbitrators Article 4: Independence, Challenge, and Replacement of Arbitrators Article 5: Request for Arbitration Article 6: Answer to the Request Article 7: Counterclaim Request Article 8: Transmission of the File to the Arbitrator Article 9: No Arbitration Agreement Article 10: Effects of the Arbitration Agreement Article 11: Payment of Arbitration Costs Article 12: Notification, Communication, and Deadlines Article 13: Place of arbitration Article 14: Confidentiality of Arbitral Proceedings Article15: Minutes recording the Arbitration Purpose and fixing the Translation subject to further correction (December 2016)