Ever since its creation by the Treaty of Port Louis, Mauritius in 1993, the Organisation for the Harmonisation of Business Law in Africa (OHADA) has been a successful enterprise of international legal integration. OHADA groups 17 mostly francophone African States and has been instrumental in developing a solid legal framework in various areas of commercial law among its contracting States.
This year marks 20 years from the original adoption of OHADA's arbitration provisions, namely the Uniform Act of Arbitration and the Arbitration Rules of the Common Court of Justice and Arbitration (CCJA). The Uniform Act of Arbitration applies where the seat of the arbitration is in an OHADA contracting State. The CCJA (seated in Abidjan, Côte d'Ivoire) functions as a supranational Supreme (or Cassation) Court tasked with ensuring the common interpretation and application of the OHADA laws. It also acts as an arbitral institution administering its own Arbitration Rules.
On paper, the OHADA arbitration provisions appear attractive. They drew inspiration from international principles and practice and the Uniform Act of Arbitration also provides for enforcement of awards within the OHADA region. In some instances, this could be an important advantage. At the moment 5 OHADA contracting States (Chad, Congo, Guinea Bissau, Equatorial Guinea, and Togo) have still not acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
However, the uptake of OHADA arbitrations for sizeable international disputes has been limited. This is partly due to parties traditionally preferring better established "safe" seats for their arbitrations, such as Paris or London to arbitrate African disputes. Arbitration under the CCJA rules itself suffered a setback in 2015, following the widely publicised Getma case. In 2014, Getma (a French company) was successful in obtaining a €39 million award against Guinea for wrongful termination of a port and railway concession in Conakry. In November 2015, the CCJA annulled the award on the basis that the parties had reached an agreement with the arbitrators on their fees which went beyond the scale contained in the Arbitration Rules of the CCJA, noting that only the CCJA (in its capacity administering the Rules of Arbitration of the CCJA) has the power to fix the arbitrators' fees.
The arbitrators took the unusual step of writing an open letter publicly criticising the CCJA decision and its processes. Irrespective of whether either the CCJA decision or the arbitrators' criticisms were well-founded or not (a US Court refusing to allow enforcement of the annulled award suggested there was no impropriety on the part of the CCJA), the Getma saga cast a dark cloud over OHADA arbitration. The CCJA later amended its Rules of Arbitration clarifying that while an agreement on the fixing of fees without the approval of the CCJA is null and void, this does not however affect the validity of the award rendered. Still, the harm on CCJA's reputation in the eyes of the international arbitration community had perhaps already been done.
Nonetheless, the desire – both commercial and political – for African disputes to be arbitrated in Africa with greater involvement of African counsel and arbitrators has only strengthened in recent times. Last year, OHADA revised its arbitration legal framework, with changes including increased focus on arbitrator impartiality, a clearer process for arbitrator appointments and strict time limits for local courts when enforcing awards. Another one of the reforms was the inclusion of investment disputes. Shortly thereafter, Côte d'Ivoire adopted a new Investment Code which replaced ICSID arbitration with CCJA as the preferred investor-state dispute resolution forum. More arbitration centres have either opened or been given a push in recent years in Africa (e.g. the Kigali International Centre of Arbitration in Rwanda or the Nairobi Centre for International Arbitration in Kenya), consistent with a global trend to attract arbitration work locally.
This year, Dr Emila Onyema at SOAS University of London and other arbitration practitioners launched an "African Promise", a pledge for the arbitration community to improve the profile and representation of African arbitrators, especially in arbitrations connected to Africa. Thus, whether through more arbitrations being conducted locally or through the involvement of more African arbitrators, Africa's influence in the arbitration world is set to be on the rise. For the international arbitration community that prides itself for its global credentials, this can only be a welcome development.
