Abstract

The Common Court of Justice and Arbitration (CCJA), the supreme court of the OHADA international organization consisting of 17 African State members, has recently published a range of recent decisions. In one decision, the CCJA demonstrates its support for arbitration and the arbitral process, holding that an arbitral tribunal must have jurisdiction to prevent a denial of justice where a national court had declined jurisdiction.

A new wave of CCJA Decisions

The recent publication of 30 new decisions by the CCJA, the Supreme Court of OHADA law, will provide welcome clarity to OHADA practitioners and others who fall within the jurisdiction of OHADA law.

The decisions settle important issues of OHADA law, including its procedure, conservatory measures, insolvency and issues of commercial law. One particularly interesting decision concerns the jurisdiction of an arbitral tribunal under OHADA law, and provides an example of the support of the CCJA, which also acts as an arbitral institution applying its own set of rules, for arbitration.

CCJA upholds Arbitration

In the decision, the CCJA has upheld the tribunal’s jurisdiction in the absence of any state court jurisdiction. Specifically, the Commercial Court of Bamako in Mali had rendered a judgment ordering two African companies to pay a third company 3 billion CFA francs. However, the Malian Supreme Court, referring to an arbitration clause in the relevant financing agreement, accepted an appeal, and the Mali courts ultimately found that in the presence of the arbitral clause they did not have jurisdiction.

A request for arbitration was filed with the CCJA arbitral institution, but the debtors argued that the tribunal did not have jurisdiction as the claiming company was not a signatory to the financing agreement containing the arbitration clause. The tribunal declined jurisdiction.

In an action to set aside the award, the CCJA upheld the jurisdiction of an arbitral tribunal. Given the presence of the arbitration clause which had led to the Mali courts declining jurisdiction, the CCJA found that it was essential that the arbitral process be applied to prevent a denial of justice. Specifically, it set out that: “when any state court cannot hear the case on the merits, to prevent a denial of justice and therefore legal uncertainty, equity and the proper administration of justice require that an arbitral tribunal must know of this litigation“. In other words, in this case, since no state court had competence, the jurisdiction of the arbitral tribunal would be upheld.

The Future’s Bright

At a time when arbitration in Africa is becoming increasingly widespread, the decision represents the general support for arbitration under the OHADA regime. OHADA provides a modern Uniform Act on arbitration, applicable to arbitrations seated within its territory and to the enforcement of foreign awards, as well as a specialized system of direct enforcement for CCJA arbitral awards. This decision, together with the publication of other decisions, will be welcomed by practitioners for demonstrating the transparency of and support for the arbitration process.