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 three decisions relating to annulment proceedings.
One is of particular interest as it clarified situations where the right to request an annulment had not been waived and where arbitrators were not deemed to have exceeded their powers. The decision demonstrates that the requirements for an annulment or to waive the right to request one are set at a high threshold, showing the court’s support for the certainty of arbitration and annulment proceedings in the OHADA region.
The recent decision 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 decision settles various important issues relating to arbitrations carried out under OHADA law. In particular, amongst others, the CCJA held that an arbitral award was still valid even if a tribunal has awarded a certain amount of damages based on claims neither party had submitted and where awards were published past the deadline provided for under the CCJA rules.
CCJA SHINES A LIGHT ON PROCEEDINGS
The case involved a claim for damages from the Cameroonian National Oil Company for breaches of company law. The tribunal found in favour of the Respondent, an award which the Claimant requested be annulled. The CCJA rejected the request for annulment, making the award final and incontestable.
The CCJA accepted to hear the annulment request even though the Respondent had claimed that the request for annulment was inadmissible. As is the case in only a small handful of countries (e.g. France, Belgium and Sweden), parties can waive the right to request the annulment of an arbitral award, rendering any such request inadmissible under Article 29.2 of the CCJA Arbitration Rules. The Respondent alleged that the Claimant’s Company Statute expressly waived the right to request an annulment by using the term “as a last resort” in reference to initiating arbitral proceedings. The CCJA held that this wording alone did not equate to an express waiver of the right to apply for an annulment.
With the request admissible, the CCJA dealt with the Claimant’s various assertions. The most important decision was whether the arbitrators had exceeded their powers by partly basing their damages’ calculation on grounds neither party submitted and publishing the award later than required by the CCJA rules. It held that the latter was only provisional and so it was irrelevant when precisely the tribunal published its decision. As for the former, whilst it criticised the tribunal partly calculating damages on grounds neither party had submitted, this was not sufficient evidence of arbitrators exceeding their powers under Article 30.6 of the CCJA Arbitration Rules.
CLARITY BREEDS CONFIDENCE
At a time when arbitration in Africa is becoming increasingly widespread, the decision represents the general support for arbitration under the OHADA regime. This decision, which demonstrates the CCJA’s desire to protect arbitral proceedings from court intervention, will be welcomed by practitioners.