A year of reform
While the OHADA securities law was reformed in 2011, followed by company law in 2014, as of 2016 it's OHADA arbitration's turn to be modernised: a reform of the two pillars of OHADA arbitration – l'Acte Uniforme sur le droit de l'Arbitrage and le Règlement d'Arbitrage de la CCJA – is currently under consideration. While the Permanent Secretary of OHADA has considered reforming arbitration since 2009 with the IFC-FIAS Project relating to the amendment and improvement of uniform acts in force (which aimed to enhance the legal and institutional framework created by OHADA, thereby attracting increased investment), it announced more recently its intention to revise the arbitration acts in a report on 15 July 2015. To this end, a study has been commissioned which should be finalised in the near future.
How do you modernize a law that's already modern?
The exact content of the study is still not known; however, given it involves an 'analysis of the way in which national and international centres of arbitration function' as well as 'documentary analysis and benchmarking international standards,' there is little doubt as to the project's ambition: to elevate the CCJA as a centre of arbitration that can compete with the world's main arbitral institutions.
It seems likely that the new study will build on the suggestions put forward in the summary note of March 2009 which came out of the IFC-FIAS Project. With respect to the Uniform Act relating to arbitration law, those suggestions included the following:
- putting in place a simplified arbitral procedure for small claims;
- introducing a definition of 'arbitration agreement';
- specifying the composition of the arbitral tribunal in the case of multiparty arbitration; and
- abolishing third party proceedings.
How can the application of arbitration law by the courts be improved?
However, as welcome as any modernisation may be, the main concern with respect to OHADA arbitration generally does not relate to the content of the institution's treaty, implementing rules and uniform acts, which form the basis of a modern arbitration law, but rather to how these texts are applied in the different national courts making up the OHADA region. In this respect, a number of ways of directing the application of arbitration law by national courts have been suggested, focusing in particular on two areas for reform:
- The first relates to enforcement and involves reviewing the conditions under which provisional enforcement can be allowed and appointing within the court of appeal of each OHADA state a juge d'appui who is a specialist in arbitration law.
- The second relates to annulment and suggests specifying, or even eliminating, certain grounds for annulment with the aim of preventing national courts from reviewing the substance of awards. This might be achieved in the following ways: firstly, the general grounds for annulment of an award due to the arbitral tribunal acting beyond its powers (ultra vires) could be replaced with an exhaustive list of ultra vires acts that would justify annulment. Secondly, it could be stipulated in relation to national courts' ability to evaluate the legal reasoning of an award that awards cannot be annulled on the basis of unsound legal reasoning but only on the basis of an absence of reasoning. And thirdly – and more radically – cases relating to the annulment of arbitral awards in each OHADA state could be assigned to a specialised court composed partially of judges and specialists in arbitration law. Indeed, they could even be assigned exclusively to the CCJA, with a view to preventing inconsistent application of the law by the different national courts.
The project to reform OHAHA arbitration could potentially play a role in helping to remedy some of these concerns, providing for, amongst other things, hearings with judges presiding as juges d'appui for arbitration.
A timely reform
The proposed reform to the OHADA uniform arbitration act is closely entwined with the development of international arbitration in Africa over the last decade. Arbitration as a form of dispute resolution has been rapidly increasing in popularity on the continent generally, with various arbitration centres springing up and a general arbitration focus on the continent's development as a hub. Just by way of example, the International Council for Commercial Arbitration was held in Africa for the first time in 2016, with a spotlight on Africa and much discussion on how to "Africanise" international disputes involving the continent, so that local parties can feel involved and properly represented.
In this context, the reform of the OHADA uniform arbitration act can only help to attract more attention globally to OHADA arbitration and continue to build on the CCJA's position as one of the pioneering and most well-established arbitration centres in Africa.