The adoption of the Uniform Act on Arbitration Law and the Rules of Arbitration of the Common Court of Justice and Arbitration of March 11, 1999 in Ouagadougou, marks a decisive step in the promotion of arbitration in the OHADA space.
The Port Louis Treaty of October 17, 1993 as revised in Quebec, Canada, October 17, 2008, had already laid the foundation, especially as its preamble indicates the willingness of the founding fathers “to promote arbitration as a contractual dispute resolution tool. ”
Prior to the entry into force of OHADA instruments, the use of arbitration was relatively limited. Domestic and international arbitrations were nonexistent or were summarily mentioned in some domestic laws.
The shortcomings of the legislative arsenal regarding arbitration in some countries resulted in hesitation and inconsistent case law in this domain.
The Organization for the Harmonization of Business Law in Africa (OHADA), being a legal and judicial integration tool, made a genuine legal revolution by putting in place a particularly original device capable of ensuring the promotion of arbitration.
These provisions suggest a marked change in attitudes. They also clear any misunderstanding and bias against arbitration.
The OHADA Arbitration system distinguishes between ordinary arbitration governed by the Uniform Act and institutional arbitration of the Common Court of Justice and Arbitration (CCJA) organized by the Treaty and the CCJA Rules of arbitration.
Nowadays, there exist uncountable number of arbitration centers with numerous ad hoc arbitrations. All these procedures should be in line with the cardinal principles of arbitration law set forth by the Uniform Act of 11 March 1999.
The OHADA legislator nevertheless intended to set up a Regional Arbitration Centre to uphold the international standards for alternative dispute resolution.
This specific CCJA-OHADA arbitration draws from the following legal instruments:
The Port Louis Treaty of 17 October 1993, as revised in Quebec on October 17, 2008, including Title IV relating to arbitration;
The CCJA Arbitration Rules of 11 March 1999
The Uniform Act of 11 March 1999 relating to arbitration (used exceptionally in case the arbitration rules are silent)
Decision No. 004/1999 / CCJA of 3 February 1999 on arbitration costs
Decision No. 004/99 / CM of 12 March 1999 approving the Decision No. 004/1999 / CCJA on arbitration costs
The CCJA Internal Rules relating to arbitration of 2 June 1999
The Rules of contentious procedure of 18 April 1996, as revised on January 30, 2014
As Prof. POUGOUE rightly puts it, the specific CCJA arbitration system “is unprecedented both in Africa and worldwide.”
According to René BOURDIN, one of the authors of the draft CCJA Arbitration Rules , it is “a new arbitration construction, unprecedented in the world that synthesizes all arbitration operations starting from the application commencing the procedure until the final decision of courts on the award. ”
According to the same author, the “CCJA arbitration has an undeniable and considerable advantage over any other formula proposed by arbitral institutions. The fact of having to deal with only one body for both the arbitration phase and litigation phase, if any, or the existence of a high level body with relevant guarantees as to integrity and independence, are considerable assets. ”
This dual function that makes the CCJA an original and unique institution however sparked some negative reactions.
Some authors have criticized what they perceive as a mixture of genres, which may cause some reluctance in the business community which sees arbitration as a way of avoiding States Courts for the settlement of their disputes.
We will therefore have to understand the contours of the CCJA Arbitration, not only in terms of its scope of application, but also we will consider the missions of the CCJA as an arbitration Center and as a judicial institution expected to resolve post-arbitral litigations.
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