An updated framework for arbitration
The twin pillars of OHADA – the Uniform Act on the Law of Arbitration and the Rules of Arbitration of the CCJA – have now been updated.
On 15 March 2018, three new texts adopted by the OHADA Council of Ministers will enter into force. A revised Uniform Act on Arbitration Law, the revised Rules of Arbitration of the Common Court of Justice and Arbitration (“CCJA”) and a new Uniform Act on Mediation. The revised texts were adopted by the Council in November 2017 and subsequently published in the OHADA Official Journal in December.
The present reforms deliver on a process of modernisation that was first discussed in 2009, and then gained concrete shape in July 2015 when the OHADA Permanent Secretariat announced its intention to revise the arbitration texts. The original texts date back to 1999 and as relatively recent entrants into arbitration practice, already constituted modern, workable legal frameworks. Given this strong foundation it is clear that the current revisions seek to clarify and build upon the existing texts, rather than radically rewriting the system.
Since 1999, OHADA has demonstrated its ambition to become a reliable actor in the field of alternative dispute settlement in Africa, facilitating and promoting the use of arbitration in its 17 Member States. It sought to provide parties the choice between ad hoc arbitration under the Uniform Act, and institutional arbitration according to the Rules of the CCJA, and provided a framework of modern rules (largely based on UNCITRAL Model Law) governing pre-arbitral, arbitral and enforcement stages.
However, despite instituting a strong legal framework, as an arbitral institution OHADA and the CCJA did not necessarily emerge as pre-eminent, particularly in light of the recent proliferation of arbitral institutions being developed across Africa. In terms of the law itself, the main concern in OHADA arbitration has not been the substance of its acts, but the application of the relevant texts by local courts. Criticisms are often aimed at the areas which the acts did not cover, and which therefore left variation of practice within the member states.
The present revisions take into account such reflections and provide detailed provisions aiming to enhance the operational efficiencies of the system and increase predictability for parties. In particular, detailed provisions illuminate the role of the national courts in facilitating arbitral proceedings, and clarify issues relating to the constitution of the tribunal and conduct of proceedings. There may be an element of compromise visible in these revisions, however, in terms of areas left unaddressed: for example, no procedure for expedited disputes has yet been introduced. Such procedures have grown in popularity in recent years as institutions attempt to address the criticisms of the cost and delays behind arbitration and may have been a welcome further step in increasing transparency and predictability for all involved.
Scope of the revisions
Key points relevant to practitioners in the area, and entities seeking to utilise the OHADA arbitration frameworks, are as follows:
- The introduction of a definition of the arbitration agreement (Article 3-1, Uniform Act)
- Clarification in the constitution of the arbitral tribunal, the nomination of arbitrators and the powers granted to the arbitral tribunal. In particular, the ability of the tribunal to issue interim or conservatory measures (not present in the 1999 Uniform Act) is now expressly provided for under Article 14. Meanwhile, the CCJA Rules also provide welcome clarification in addressing the question of the constitution of the tribunal in multiparty arbitration (Article 3.1).
- Increased transparency and the provision of deadlines for national courts to adhere to in exercising functions in support of arbitral proceedings. For example, the 1999 Uniform Act had stipulated simply that annulment proceedings were to be dealt with by national courts, with those courts’ decisions appealable before the CCJA (Article 25). The updated text addresses the issue of a slow or underperforming domestic court: specifying that the national court’s decision on annulment must be rendered within three months, failing which the annulment application can be made directly to the CCJA (which also retains its appellate function) (Article 27).
- Arbitrator’s fees: avoiding another Getma and emphasizing the CCJA’s authority. In light of the intense debate that followed the CCJA’s setting aside of a €34 million award in 2016, on the basis that the international arbitrators had been paid higher fees than those set out in the CCJA Rules, a provision has been introduced into the CCJA Rules, explicitly recognizing that the fixing of fees without the court’s approval would be null and void – without this being a ground for annulment of the award (Article 24.4).
While the operation of these provisions in practice remains to be tested, the reforms are a timely and welcome development in the context of the development of arbitration in Africa, a field which continues to attract growing interest. In this light, the enhancement of operational efficiencies within OHADA arbitration as provided for in the revisions are likely to enhance further the credibility of the supranational framework and attract yet more attention from the legal and business community towards arbitration in Africa.
This modernization follows on from other recent initiatives by OHADA in the arbitration sphere, including its 2017 joint-publication with the CCJA of the first comprehensive guide to the CCJA’s arbitration system, and the anticipated April 2018 opening of OHADAC’s new Centre for Arbitration and Mediation. Collectively, these initiatives demonstrate OHADA’s work – both as it strives to stay at the forefront of arbitration developments in Francophone Africa, and as it provides a welcome precedent for the establishment of localized arbitral institutions further afield.
 Getma International v Republic of Guinea, ICSID Case No. ARB/11/29