Responding to increased economic and foreign investment across Africa and to establish the Organization for the Harmonization of Business Law in Africa (“OHADA”) as a trustworthy arbitral institution, the OHADA Council of Ministers has revised the Uniform Act on Arbitration Law and the Rules of Arbitration of the Common Court of Justice and Arbitration (“CCJA”).
OHADA is a supranational organization that has harmonized commercial law within seventeen West and Central African countries. Established in 1993 and later revised in 2008, the OHADA Treaty Uniform Acts aims to increase international investments, promote arbitration and other alternative dispute resolution methods, as well as guarantee judicial and legal security for international investments. The Uniform Arbitration Act unifies the arbitration laws in OHADA member states and establishes the rules applicable to arbitral disputes having their seats in an OHADA Member State. The Uniform Arbitration Act aims to enhance transparency, promptness, and efficiency of arbitral proceedings in the member states. Under the Act’s framework, member states can choose to arbitrate either under the CCJA Rules of Arbitration or under the Uniform Act on the Law of Arbitration.
On November 23, 2017, the OHADA Council of Ministers completed revisions of both the CCJA Rules on Arbitration and the Uniform Act on the Law of Arbitration. Going into force on March 15, 2018, both revisions have clarified and strengthened the previous versions from 1999 and 1996 respectively. Some of the most significant changes pertain to (i) arbitrators’ standard of impartiality, (ii) procedure for arbitrators’ appointment, (iii) time period for responding to a request of exequatur, and (iv) time period to respond to annulment actions.
First, both texts strengthen the arbitrators’ duties of impartiality and independence by expressly providing an obligation to inform the parties and the Secretary General of the CCJA of any circumstances that may give rise to legitimate doubt about the arbitrator’s independence or impartiality (See Uniform Act on the Law of Arbitration, Art. 7; CCJA Rules on Arbitration, Art 4.1). The revised Act also requires that such challenges against an arbitrator must be raised within thirty days of a party discovering a fact that gave rise to the challenge (See Uniform Act on the Law of Arbitration, Art. 8). This time constraint ensures that all claims are brought in a timely manner and do not disrupt the facilitation of the arbitration.
Second, both revised texts clarify the rules for the appointment of arbitrators. By default, arbitration proceedings will be heard by a sole arbitrator absent an agreement by the parties or a determination by CCJA (See Uniform Act on the Law of Arbitration, Art. 5; CCJA Rules on Arbitration, Art 3.1). In addition, unlike the previous version of the Rules, the revised Rules on Arbitration details the procedure for the selection of arbitrators absent an agreement by the parties stating in detail the procedure of such appointments (See CCJA Rules on Arbitration, Art 3.3).
Third, both texts impose a strict time limit on the recognition and enforcement of arbitral awards. The Rule has imposed a limit of fifteen days for State courts to recognize and enforce arbitral awards (See Uniform Act on the Law of Arbitration, Art. 31). If the court does not render a decision within this time, the award is deemed to be recognized by the State court (See Uniform Act on the Law of Arbitration, Art. 31). The CCJA must also rule on a request for enforcement within 15 days (See CCJA Rules on Arbitration, Art 30.2). The new time restriction will expedite a procedure that used to take months.
Fourth, both revised texts impose a vigorous time limit on decisions for annulment actions against an arbitral award. All annulment actions must be commenced within one month after the award is rendered (See Uniform Act on the Law of Arbitration, Art. 27). The court has three months to make a decision on the annulment action; if it fails to do so in this time period, the action can be brought before the CCJA, which must issue a ruling within six months (See Uniform Act on the Law of Arbitration, Art. 27; CCJA Rules on Arbitration, Art 29.4). Both revised texts also provide that the parties may waive the right to file an annulment action before a state court or the CCJA subject to international public policy. (See Uniform Act on the Law of Arbitration, Art. 25; CCJA Rules on Arbitration, Art 29.2).
In conclusion, the reform on OHADA arbitration law is a positive step toward making arbitration in the OHADA region more efficient and reliable to outside investors. However, it remains to be seen in practice whether the State courts and the CCJA will be able to execute the new rules as drafted.
By Princesse Mabiala, Junior Staffer