DECLARATION

I hereby declare that the realisation of this work is a record of my own research. The
dissertation has not been published or presented anywhere for a higher degree by anybody or
organisation. All quotations and references have been acknowledged accordingly.

Name……Marks Abaiko Akomone

Signed………………………………

i
 CERTIFICATION

This dissertation entitled “THE APPLICATION AND CHALLENGES OF ALTERNATIVE

DISPUTE RESOLUTION IN CAMEROON: A CRITICAL APPRAISAL” by Marks Abaiko
Akomone, meets the regulations governing the awardof the Degree of LL.M. in law of the
University of Yaounde 2, Soa and is approved for its contribution to knowledge and literary
presentation

Dr. Egute Matthew A. Date…………………….

Supervisor

ii
 DEDICATION

This work is dedicated to my mother Hannah Ongie

iii
 ACKNOWLEDGMENTS

This dissertation would not have seen the light of the day without the abundant support of
many persons I would like to appreciate. My profound gratitude goes to my more than able
supervisor. Dr Egute Matthew, Senior lecturer at the University of Yaoundé II for his abundant
efforts in guiding and providing constructive criticisms to the furtherance of this work. Its been
my pleasure being supervised by you.
My abysmal appreciations travels to the host of lecturers at the English Law Department of the
University of Yaoundé II, particularly Prof. Ephraim Ngwafor, Prof Tamasang Christopher,
Prof. Checka Cosmas and Prof. Rabiatou Danpullo for their huge impartation of knowledge in
me.
Am grateful to Dr Fomchang Valery and his wife Njie Aniva for their unending support
both academically and financially. I say a big thank to Ngum Mercy Fosoh, my elder sister in
academics for continuous Moral and Financial support to a total stranger like me.
Finally my immense gratitude goes to all my friends notably; Miracle Obina, Mbu Desmond,
Isaah Eugen, Asaah Olivier, Nekongo Thompson, Cynthia Wase and Makia David for their
relentless contribution and assistance for the realisation of this work.I cannot end this section
without thanking Konyuy Chanceline for her gargantuan assistance in the typing of this work.

iv
 TABLE OF CONTENTS

DECLARATION ...................................................................................................................... i
CERTIFICATION ................................................................................................................... ii
DEDICATION ....................................................................................................................... iii
ACKNOWLEDGMENTS ...................................................................................................... iv
TABLE OF CONTENTS ..........................................................................................................v
ABSTRACT ........................................................................................................................... ix
LIST OF CASES .................................................................................................................... xi
LIST OF LEGAL INSTRUMENTS....................................................................................... xii
LIST OF ABBREVIATIONS ............................................................................................... xiii
CHAPTER ONE .......................................................................................................................1
GENERAL INTRODUCTION .................................................................................................1
1.1 BACKGROUND AND RATIONAL ...............................................................................1
1.2. PROBLEM STATEMENT .............................................................................................5
1.3 RESEARCH QUESTIONS ............................................................................................5
1.4 HYPOTHESIS ...............................................................................................................6
1.5 OBJECTIVES OF THE STUDY .....................................................................................6
1.6 SIGNIFICANCE OF THE STUDY .................................................................................6
1.7 SCOPE OF THE STUDY ................................................................................................7
1.8 RESEARCH METHODOLOGY .....................................................................................7
1.9 LITERATURE REVIEW ...............................................................................................7
1.10 DEFINITION OF KEY TERMS ................................................................................ 10
1.11 Organisational layout................................................................................................. 11
CHAPTER TWO .................................................................................................................... 13
MECHANISMS, MERITS AND DEMERITS OF ADR ......................................................... 13
2.0 Introduction ................................................................................................................... 13
2.1 Mechanisms of ADR ..................................................................................................... 14
2.1.1 Conciliation ............................................................................................................ 15
2.1.2 Negotiation ............................................................................................................ 15
2.1.3 Mediation.............................................................................................................. 17

v
 2.1.4 Arbitration ............................................................................................................ 18
2.1.4.1 Institutional Arbitration ........................................................................................ 18
2.1.4.1.1 Merits of Institutional Arbitration ......................................................................19
2.1.4.1.2 Demerits of Institutional Arbitration .................................................................. 19
2.1.4.2 Ad hoc Arbitration ............................................................................................... 19
2.1.4.2.1 Strength of Ad hoc arbitration ...........................................................................20
2.1..2.2 Weakness of Ad hoc............................................................................................ 20
2.2. Merits And Demerits of ADR ...................................................................................... 20
2.2.1 Merits of ADR ........................................................................................................ 21
2.2.1.1 Informality ...........................................................................................................21
2.2.1.2 Multiple Parties .................................................................................................... 21
2.2.1.3 Application of Equity ........................................................................................... 21
2.2.1.4 Direct Participation Among The Parties ............................................................... 22
2.2.1.5 Safeguard Relationship of The Parties .................................................................. 22
2.2.1.6 Use of Neutral Third Party With No Decision Marking Capacity ......................... 22
2.2.1.7 Cost Effect ...........................................................................................................23
2.2.1.8 Privacy ................................................................................................................. 23
2.2.2 Demerits of ADR .................................................................................................. 24
2.2.2.1 Absence of Appeal ............................................................................................. 24
2.2.2.2 Limited or No Discovery ...................................................................................... 24
2.2.2.3 Reluctance In The Enforcement of Arbitral Awards .............................................24
2.3.2.3 Conclusion ...........................................................................................................25
CHAPTER THREE ................................................................................................................ 26
LEGAL AND INSTITUTIONAL FRAMEWORK OF ADR .................................................. 26
3.0 Introduction ................................................................................................................... 26
3.1 Legal Framework of ADR ............................................................................................. 26
3.1.1 Universal Agreements ............................................................................................. 26
3.1.1.1 UN Charter ..........................................................................................................27
3.1.1.2 New York Convention on the Recognition and Enforcement of Foreign Arbitral
Azard.1958 ...................................................................................................................... 30
3.1.1.3 Convention for the Pacific Settlement of International Disputes ........................... 31

vi
 3.1.1.4 UNCITRAL Model law on International Commercial Arbitration ........................ 32
3.1.2 Regional framework Laws on ADR ........................................................................ 33
3.1.2.1 OHADA Uniform Act Relating to Arbitration ...................................................... 33
3.1.2.2 ADR IN CIMA CODE ......................................................................................... 35
3.1.3 National Legislation on ADR .................................................................................. 37
3.1.3.1The Cameroon Labour Code ................................................................................. 37
3.2 Institutional Framework of ADR ................................................................................... 38
3.2.1 Universal Institutions .............................................................................................. 38
3.2.1.2 International Chamber of Commerce (ICC) .......................................................... 40
3.2.1.3 World Intellectual Property Organisation (WIPO) ................................................ 42
3.2.1.5 London Court of International Arbitration (LCIA) ............................................... 47
3.2.1.6 Court of Arbitration for Sport (CAS) .................................................................... 48
3.2.1.7 Court of Arbitration for Art .................................................................................. 51
3.2.2 Regional Institutions ............................................................................................... 52
3.2.2.1 African Mediation and Arbitration Court in Morocco ...........................................52
3.2.2.2 Cairo Regional Centre for international Commercial Arbitration .......................... 54
3.2.2.3 Kigali International Arbitration Centre(KIAC) ..................................................... 55
3.2.2.4 Common Court of Justice an Arbitration (CCJA) ................................................. 57
3.2.2.4.1 Arbitral function................................................................................................ 58
3.2.2.4.2 List of Arbitrators at the CCJA ..........................................................................58
3.2.2.4.3 Enforcement of Arbitral Awards ....................................................................... 59
3.2.2.4.4 Examples of Cases Entertained by the CCJA ..................................................... 59
3.2.2.4.5 The Reaction from the Arbitrators ..................................................................... 60
3.2.3 National Arbitration Institution ............................................................................... 61
3.2.3.1 Groupement Inter-Patronal du Cameroun (GICAM) ............................................ 61
3.2.3.2 Cameroon Chamber of Commerce ....................................................................... 62
3.2.3.3 Conclusion ...........................................................................................................62
CHAPTER FOUR .................................................................................................................. 64
THE CHALLENGES OF ADR IN CAMEROON .................................................................. 64
4.0 Introduction ................................................................................................................... 64
4.1 Reasons for Incorporating ADR in Cameroon................................................................ 64

vii
 4.1.1 Delays in Court Proceedings. .................................................................................. 64
4.1.2 High Rate of Poverty............................................................................................... 65
4.1.3 Over Crowding in Courts ........................................................................................ 65
4.1.4 To Avoid Corruption From The Judiciary ............................................................... 65
4.1.5 Reduction of Economic Interest of Legal Practitioners ............................................ 66
4.2 Challenges of ADR in Cameroon................................................................................... 66
4.2.1 Shortage of ADR Institutions in Cameron ............................................................... 66
4.2.2 Shortage of Trained Judges and Lawyers ................................................................ 66
4.2.3 Lack of Proper Education for the People ................................................................. 67
4.2.4 Minus Impression of Lawyers Regarding ADR ....................................................... 67
4.2.5 Non Application of ADR in Certain Cases for Optional Reasons............................. 68
4.2.6 Absence of a Statutory Code for ADR..................................................................... 68
4.2.7 Lack of Separate Mediation Court ...........................................................................69
4.2.8 Conclusion .............................................................................................................. 69
CONCLUSSION AND RECOMMENDATIONS ................................................................... 70
GENERAL CONCLUSION ................................................................................................... 70
RECOMMENDATIONS ........................................................................................................ 71
More Institutional Frameworks Should be Established .............................................. 71
A Separate Code Should Be Enacted Regarding ADR .............................................. 71
The Judges And Lawyers Should Be Properly Trained .............................................. 72
Public Awareness Should Be Increased..................................................................... 72
Positive Impression Should be Increased Among the Lawyers And Judges Concerning
ADR ................................................................................................................................ 72
ADR Should be Applied In Certain Criminal Cases .................................................. 73
A Statutory Body Should Be Created For Formulating Rules, Planning And
Monitoring The Whole ADR System. .............................................................................. 73
BIBLIOGRAPHY .................................................................................................................. 74

viii
 ABSTRACT

In recent years, the cities of Cameroon has been congested with all types of businessmen
stemming from the CEMAC and other Regions in the world. This massive influx of business
men is associated with the governments engagements in Bilateral Investments Treaties in a bid
to foster Economic, Socio-Political and Cultural developments in the Country. In a bid to
secure this investors, the government of Cameroon has enacted laws which are aimed at
ensuring a favourable investment and business climate in the country. It is rather unfortunate
that all the business laws are not capable of preventing disputes from occurring among
investors and other business men. Thus there was a dire need to frame or borrow laws which
are aimed at providing dispute settlement mechanisms which is timely and different from the
national courts procedures. The Government of Cameroon being a member of the OHADA
countries, immediately incorporated the Alternative Dispute Resolution Mechanisms provided
by OHADA namely; Uniform Act on Arbitration and recently Mediation. Though this Laws are
clear, its implementation has been flooded with challenges. As an attempt to decipher the
challenges, this researcher collected data through the use of primary and secondary research
method. As concerns the primary method, interviews were conducted as well as group
discussions while data was collected secondarily from texts books, articles, reports and internet
sources. Through this methods this researcher was able to assemble the challenges plaguing the
implementation of ADR in Cameroon. They consist of ; Shortage of ADR Institutions, lack of
proper sensitization regarding ADR and lack of trained Judges and lawyers. To tackle this
challenges, the following recommendations can be considered. Public awareness should be
increased, the government should create more ADR institutions and Judges and lawyers should
be trained towards ADR. The key words are Alternative, Dispute, Resolution, and Commercial.

ix
x
 LIST OF CASES

1. Bangladesh v India over Bay of Bengal Maritime Boundary 2014

2. Boardman v Guinness (Nig) Ltd(1980)
3. Burchell v Bullard (2005)
4. Capital Financial Holdings Luxemburg SA v Republic of Cameroon
5. Cowl Frank v Plymouth City Council (2001) .
6. Dunnett v Railtrack (2002)
7. Fisheries Jurisdiction Case (1974)
8. France v Great Britain ( also known as the Savarker case (1911)
9. Halsay v Milton Keynes General NHS Trust. CA 11 May 2004
10. Klockner Industrie Anlagen Gmbh et al v the United Republic of Cameroon and Societe
Camerounaise des Engrais ( SOCAME) S.A.
11. Leicester Circuits Ltd v Coates( 2003)
12. Mauritus v United Kingdom over Chagos Marine protected area (2015)
13. North Sea Continental Shelf Cases(1969)
14. Okonkwo v Guinness(Nig) and Anor.(1980)
15. S v J, (695/10), (2010) ZASCA 139
16. Sudan v Sudan Peoples Liberation Movement (ABYEI Arbitration) 2009
17. The People v Eta Martin, unreported judgment of April 1998, Suit No. HCSW/29mc/98
18. Townsend – Turner and Another v Morrow ( 524/2003, 6055/2003) zawchc53
19. United State of America v Mexico over the Pious Fond of California 1902
20. United States v Iran1 (Iran-united states claims tribunal) in the early 1980s the PCA
helped setup the claims tribunal.

xi
 LIST OF LEGAL INSTRUMENTS

Nattional Legal Instruments

1. Preamble of the Constitution of Cameroon. Law number 2008/001 of 14 April 2008

amending and supplementing some provisions of law number 96/6 of 18 January 1996
which amended the Constitution of 2 June 1992
2. Law no 2011/022 of 21 December 2011 relating to the organisation and promotion of
Physical and Sports activities in Cameroon
3. law number 2006/015 of 29 December 2006 Organising the Judiciary in Cameroon
4. The 1992 Cameroon Labour Code
Regional Instruments

5. 23 and 24 November 2017 OHADA Uniform Act on Arbitration and Mediation

6. February 1992 CIMA CODE
Universal Instruments
1. 1945 UN Charter
2. 1948 Universal Declaration of Human Right
3. 1899 and 1907 Convention for the Pacific Settlement of International Disputes
4. the 1958 New York Convention on The Recognition and enforcement of Foreign
Arbitral Award
5. the 1985 UNCITRAL Model on International Commercial Arbitration with its 2006
Amendments

xii
 LIST OF ABBREVIATIONS

CEMAC………… Communaute Economique et Monetaire des Etat d’ Afrique Central

CAS…………… Court of Arbitration for Sport
CAFA……………… Court of Arbitration for Art
CAMAR…………… African Mediation and Arbitration Court in Morocco
CCJA……………… Common Court of Justice and Arbitration
CIMA………… Conference Interafricaine des Marche d’ Assurance
CRCCICA………… Cairo Regional Centre for International Commercial Arbitration
GICAM…………….. Groupement Inter-patronal du Cameroun
ICSID……………… International Center for the Settlement of Investment Dispute
KIAC…………….. Kigali International Arbitration Center
OHADA…………... Organisation pour l’ Harmonisation en Afrique du Droits des Affaires
UN………………… United Nations
UNCITRAL……… United Nation Commission on International Trade Law
WIPO………… World Intellectual Property Organisation

xiii
 CHAPTER ONE

GENERAL INTRODUCTION

1.1 BACKGROUND AND RATIONAL

The occurrence of dispute has been an indispensable part of societal interaction since the
inception of human settlement or existence. If disputes2 among individuals are not settled
earlier enough, it may threaten national peace and security which constitute the basic
parameters of measuring national development. With the objectives of entertaining disputes in
a more soluble manner and with the notion that 3

“Injustice4Anywhere Is A Threat To Juctice Everywhere”

Alternative Dispute Resolution( herein after mention as ADR ) has been regarded as an
inspiration to provide an easy path to justice for all. The bold assertion inscribe in Article 25 of
the Universal Declaration of Human Rights of 1948 that;

“Everyone Is Entitled to All The Right And Freedoms Set Forth In This Declaration
Without Distinction of Any Kind Such As Race, Colour, Sex, Religion, Language,
Political or Other Opinion, National or Social Origin, Property, Birth or Other Status.
Furthermore, No Distinction Shall be Made on The Basis of The Political Jurisdictional
or International Status of The Country or Territory To Which A Person Belongs, Whether
It be Independent, Trust, Non-Self Governing or Under Any Other Limitation of
Sovereignty,”

has been embraced and inserted in the Constitution of many countries such as Cameroon as
fundamental rights. The Cameroonian Constitution6 has adumbrated certain fundamental rights

2
Saddam H. (2015) A Critical Study of Alternative Dispute Resolution In Harmonising Interstate Dispute; The
Case of UGANDA. Islam University of UGANDA ( Bachelors Degree Thesis), pg 11-13
3
Article 2 of the 1948 Universal Declaration of Human Right
4
The effectiveness of alternative dispute resolution in Bangladash ; a critical analysis
5
International journal of multidisciplinary research and development ; volume 6 issue 3 ; March 2019 ; page
number 108-109
6
Preamble of the Constitution of Cameroon. Law number 2008/001 of 14 April 2008 amending and
supplementing some provisions of law number 96/6 of 18 January 1996 which amended the Constitution of 2 June
1992

1
such as equality before the law. Everyone has the right to be heard and fair trial. The
responsibility lies on the court or tribunals to enforce these rights with the aim of providing
justice to the people.

It is theoretically true that the legal system of Cameroon provides justice for all but practice has
shown that the disadvantage cannot reach the door of justice. In this case alternative dispute
resolution is the only glorious way to easily ensure and enforce justice. Many think that ADR is
a mechanism born from the social interest and progress of the 1960s, to clear this wrong
thought, this researcher peeped into the book authored by Barrette J. In the book,7 the author
traces the roots of ADR as far back as 1800BC when the Mari Kingdom( today modern Syria)
used mediation and arbitration to settle disputes with other kingdoms, he went further to state
that 960 BC Isreal King Solomon arbitrates dispute over baby by threatening to split the child
not to stop. In 300BC, Aristotle praised arbitration over courts, in the 1170 George Washington
places Arbitration clause in his will, in 1776-1785 Benjamin Franklin, John Adams and
Thomas Jefferson negotiated in Europe on behalf of the weak United States which established a
diplomatic history for the young nation America at that time.In 1865, Gerald Lee and grant
negotiated the term of the Russia – Japanese War and this earned him the noble peace prize.
The 1914-1918 World War one was ended through negotiations in Europe.

From the above, one can forcibly conclude that the origin of ADR predates and has exploded
beyond the geographical boundaries of western civilisation to avoid open interstate dispute and
regular violent consequences of coercive force in executing a judicial decision, disputing states
and parties concerted to recognise the advantage of commonalities rather than differences.This
pursuit and process that brings states and parties together has always been a point of honour for
parties and arbitrators.

The consensual nature of either opting for dispute resolution or deciding the outcome of dispute
by the parties is a central element of ADR. ADR has received international recognition as the
best mechanism for resolving dispute due to its enormous advantages. It isgain less to say even
court officials who use to perceive ADR as a seizure of court powernow accept the need for

7
Barrett J. ( 2004), History of Alternative Dispute Resolution, 1st edition,989 Market Street San Francisco, pg 35-
36

2
ADR as a suitable means of entertaining disputes. Judicial support for ADR has been
demonstrated in the following English cases.

In Cowl Frank v Plymouth City Council8, lord wolf at the court of appeal held that
judicial review was not necessarily the proper way in the face of alternatives, stating
unequivocally that “Sufficient should be known to make the failure to adapt it in particular
where public money is involved in an indispensible manner”. In Dunnett v Railtrack9, Brook LJ
at the appeal court told the parties to consider ADR but Railtrack refused to accept this till the
cost of the appeal began to flow, they were denied their cost recovery from Dunnett. The court
advised that if lawyers “Turn down out of hand the chance of ADR if suggested by the court as
of this case, they may have to face uncomfortable cost consequences”. Again the leading case
of Burchell v Bullard10 is a sound lesson as to the dangers and inappropriateness of pursuing
legal action in the courts when ADR is clearly available and a better way of deciding the
contended issue. Here, Bullard was eventually faced with exorbitant cost arising from their
sincere refusal to take advantage of the earlier offer of mediation. Many more similar cases
demonstrate judicial support for ADR in the place of court litigation. For example in the case of
Leicester Circuits v Coates Brothers11, Coates was not awarded full costs though they won due
to the fact that they withdrawn from a mediation process. In Halsay v Milton Keynes NHs
Trust12, the court reviewed practice relating to ADR and accepted the potential benefits of ADR
especially a voluntary process of mediation. The court concluded a party cannot be compelled
to use ADRbut that a cost penalty maybe impose on a party who unreasonably refuse to
consider ADR. To end the list of judicial support, Lord Nicholas Philips MR, the then president
of the supreme court of UK had lamented in a case involving over draft charges by 7 banks and
nationwide building society, that the long drawn out of series of court hearings would have
been averted through the use of amicable settlement with the office of fair trading or through
ADR at the financial ombudsman service.

8
Cowl Frank v Plymouth City Council(2001) .https://asauk.uk/archive/alternative-dispute -resolution/adr-court-
cases. lastly visited 15th February 2020
9
Dunnett v Railtrack (2002) ibid
10
Burchell v Bullard(2005) ibid
11
Leicester Circuits Ltd v Coates( 2003) ibid
12
Halsay v Milton Keynes General NHS Trust. CA 11 May 2004

3
 Coming to Cameroon, resolving commercial dispute has been the greatest challenge
suffered by business men or commercial companies in the country due to the profound
difficulty face in determining the duration a dispute could be heard and concluded. Though the
laws are clear as per the duration of entertaining commercial dispute, judges have widen the
gap between practice and the law as some of this cases go interminable. The issue is further
complicated by the fact that the judicial system has twin procedural rules. That is the civil
procedure rules applicable in the English part of Cameroon which demands the process of
pleadings and trial while the ‘procedure civil et commercial borrowed from the French civil
procedure is based hugely on written submissions and presentation of supporting documents.

It is sad to note that the above procedures take up to 12 months for a commercial dispute to be
entertained and concluded. It should be on this sad notice that business men in some African
countries particularly the franc zone, commenced demanding a better and smooth procedure to
entertain their commercial dispute especially with the knowledge that time is money in
business. It is with the above regard that initiative for the Organisation for the Harmonisation of
Business law in Africa commonly known in its French acronym as OHADA was born. This
initiative was elaborated in April 1991 when finance ministers of Communaute Financiere
Africaine13 met in Ouagadougou the Burkinabe capital. The treaty was finally signed on the
17th 0f October 1993 at Port Louis with Cameroon as a member. This treaty entered into full
gear on 1st January 1998 in all the member States.

The major aim of the treaty is to harmonise laws in the member states through the drafting
and adoption of simple modern common rules that are adopted to the relative judicial
procedures, and by encouraging arbitration for the settlement of contractual disputes. To prove
its veracity, the OHADA established the common court of justice and arbitration to apply its
rules and adjudicate commercial disputes. It’s worth knowing that Cameroon ratified the
OHADA treaty in 1996 which is a clear prove that the nation Cameroon is poised to apply the
various alternatives method crafted by the treaty to settle commercial dispute. Due to this
factor, this work is concerned on the length of application and the possible challenges
encountered.

13
Communaute Financiere Africaine in English is; African financial community

4
1.2. PROBLEM STATEMENT

Since the creation of man, dispute has been inevitable due to social interactions in businesses
and failures to comply with the laws and rights of individuals in a given state. Dispute varies
from individuals v individuals, individuals v community, community v state and are mostly
concentrated on contract breach, family issues and violation of rights. For many decades,
litiga2tion has hugely been used as the lone method of resolving dispute. Even though, we
praise the efforts of governments for providing this means, it is categorical to say the process
has failed in satisfying the expectations of many interms of dispute resolution.

It is worth knowing that civil disputes are different from criminal dispute where one party
either the state or the accused must win and the other loses. Again, it is this researchersview
that the corrupt path of entering into ENAM [National School of Administration and
Magistracy has made litigations to be very corrupt14, time consuming and costly. The courts
road for the entertainment of civil dispute is not only corrupt and costly but its service of justice
has been doubted and proved unsatisfactory, thus a need for an alternative mechanism is more
than necessary.

The above warrants the prevalence of a more inclusive and embracive means such as ADR
to adjudicate civil disputes wherein the parties can seek amicable resolutions without distorting
their relationship and societal huddles is more desirable. ADR has come to provide disputed
parties a convenient path to settle their differences without availing corrupt, public and time
consuming litigation.

1.3 RESEARCH QUESTIONS

The main research question is; Is The An Effective Implementation Of ADR In Cameroon?

While the specific research questions are;

• What are the various ADR mechanisms in Cameroon?

• Is there an influence of international business law on Cameroon business law?

14
This researcher is of the view that: The corrupt path use by many to enter ENAM particularly magistracy has a
gross effect on the service of justice. This is because the magistrate will concentrate his interest in amassing
money that can be used to pay back the money the family borrowed to secure a position for him or her in the
prestigious institution. All these will be done at the expense of those who yawn for justice

5
 • How does the ratification of the mechanisms of international business law
influence Cameroon business law?
• To what extent does Cameroon business laws and policies provide for ADR
mechanisms with reference to conciliation, mediation and arbitration?

1.4 HYPOTHESIS

This work is posited on the hypothesis that;

Alternative Dispute Resolution Is Applied In Cameroon Though Fraught With Many
Challenges

1.5 OBJECTIVES OF THE STUDY

This opus has the following objectives;

• To show that ADR mechanisms are suitable and preferable for the settlement of
civil disputes
• To analyse the contributions of ADR regulations and institutions in the smooth
functioning of businesses in Cameroon in particular and Africa in general
• To indentify the challenges encountered in the implementation of ADR in
Cameroon

1.6 SIGNIFICANCE OF THE STUDY

An academic exercise of this magnitude can only gain some points if it does contribute to
existing scholarship. The OHADA Uniform Act provides alternative dispute resolutions
however; its implementation in civil dispute resolution has not been effective in Cameroon.
This research will contribute in analysing the specific provisions of the OHADA and other
legislations which provide room for ADR. This work will contribute in explaining why ADR is
a better means of solving civil dispute over litigation. The study will also analyse the
significance of incorporating international business instruments into the business instruments of
the republic of Cameroon. This opus has also highlighted the challenges encountered when
implementing ADR in Cameroon. Lastly, we think that this work will transmit the knowledge
of the existence of ADR to business men and Cameroonians at large

6
1.7 SCOPE OF THE STUDY

The interest of this work is to decipher the performance, as well as the profits and
challenges associated with the adoption and operation of alternative dispute resolution
mechanisms in the CEMAC sub region with particular emphasis on Cameroon as the main
pillar of this sub region.

1.8 RESEARCH METHODOLOGY

The study is expository, analytical and critical. The study adopts both the primary and
secondary research methods. The primary research method constitutes data collection through
analyses of ADR legislations, interviews, group discussions as well as visits to relevant sites.

As regards secondary research method, data was collected through the reading of text books,
journal articles, news, as well as internet sources. Data collected through this method were
analysed using the analytical approach.

1.9 LITERATURE REVIEW

Many author’s have written explicitly on the topic alternative dispute resolution and its
mechanisms as means of resolving commercial dispute. We shall critically review their
writings with the main aim of exposing a line between our studies and theirs. This exercise will
contribute in spicing our work as well as unveiling the importance of this study.

Egute Matthew in his book15 exposed consumers to ADR which he describes as an extra
judicial channel. He holds that the acronym ADR is a group of flexible approaches in resolving
dispute more quickly and at a lower cost than plying through the tedious road of adversarial
proceedings. He suggests that an injured consumer can make report to a regulatory agency or
the consumers unit of the manufacturer if any. A complaint can be laid before a consumer
voluntary association like an NGO {Non Governmental Organisation} for necessary action. It
is also possible that if these facts are made known to consumers, more enthusiasm will be
shown in the area of redress. He holds again that the non judicial mechanisms are more
impactful and satisfactory to consumers than the judicial. Another argument advance by him is
that judicial mechanisms depict a certain level of risk taking that is the risk of winning and

15
Egute M.(2018),Principles of Product Liability Law In Cameroon,1st edition, Lead Publishers, pg 207-209

7
losing and hence going without a remedy as illustrated in the Nigerian Guinness Cases16 in his
book.

He continues that the risk factor is much lower in the none or extra-judicial system or
mechanisms which reveals that in appropriate circumstances, producers using the good
customer relation basis are minded to compensate even where the consumers claims are
baseless. Moreover, the risk factor brings the disadvantage of the judicial process in
exacerbating conflict, structuring relationships on an adversarial basis so that clear winners and
losers are created. The effect is that the loser is minded to delay the implementation of the
decision of the court through appeal or other tactics of obstruction.

He cemented his thought on this by saying that ‘under extra judicial mechanisms, this
obstructive tactics are less prominent as the parties often agree on the resolutions adopted to
deal with the complaint in issue. It is therefore necessary to encourage the utilisation of extra
judicial mechanisms or channel in resolving consumers complaints, expediency, speed and low
cost no doubt support this.

In his article17Feinberg argues that issues such as ‘burgeoning’ courts dockets, spiralling
litigation cost and dissatisfaction with the traditional adversarial process have caused interest in
the use of alternative dispute resolution mechanisms. He extrapolated the virtues of ADR and
noted that though all these ADR methods have their advantages over litigation in particular
cases, Mediation in the eyes of this writer is particularly advantages to not only litigation but all
other alternative means of resolving disputes. He holds that in the dispute resolution process,
litigation focuses on narrow issues determined by prefabricated legal doctrines and litigation
prime interest in dispute resolution is to determine who is right or wrong not necessarily to
resolve the conflict and foster relationship. He further noted that mediated –assisted does not
only ensure amicable settlement of the conflict but goes as a legal determinants to explore
existing relationship between disputing parties. This reconciliatory approach adopted by ADR
is very imperative as the survival of the society is at stake. Disputing parties will always meet

16
The Nigerian Guinness cases include ; Okonkwo V Guinness(Nig) and Anor.(1980) 1PLR 583, Boardman v
Guinness (Nig) Ltd(1980) NClR 109
17
Kenneth R, (2013) A Preferred Method of Dispute Resolution. Pepperdine Libraries , vol 16, issue 5, page 30

8
together and engage in some activities beyond the conflict, so it is important in ensuring that
antagonism ceases and parties reconcile for peace and tranquillity to prevail in the society.

In the article ‘Alternative Dispute Resolution in Africa, Preventing Conflict and

Enhancing Stability’, by Uwazie18stated a great percentage of Africans have lost confidence in
their states, courts to ensure timely and just closure to their cases. In post conflict and fragile
settings characterised by heavy tensions and malfunctioning justice system, there is an urgent
need for a timely, accessible, affordable and trusted dispute resolution mechanisms to resolve
disagreement or dispute before they widen in scope and destruction. He posits that in situations
where the courts are involved, much emphasis is on addressing legal questions while less or no
attention is given to conflict resolution and mitigation which has the tendency of escalating
disputes as it is assume that real conflicts begin after the judge must have proclaim winner in a
case. The ability of citizens to have confidence in the justice sector of their country has serious
repercussions on the governance of the society. From a survey conducted in 26 AFRICAN
states19, he noted that respondent who have confidence in their judiciary systems where more
than 3 times likely to say they have confidence in their national governance.

Citizen’s confidence to the judiciary is tantamount to their judgement on the

government. The use of antiquated structures, inadequate stenographers, manual records
keeping aside overcrowding of cases render the courts pray to manipulations. Meanwhile, there
is a decline in the preference for traditional justice where citizens and their indigenous chiefs,
spiritual leaders and clan head do arbitrate and conciliate their grievances due to modernisation.
In his view, ADR institutions have instilled and continues to instil confidence in the judicial
system once more. Thus backlog of cases, frequent adjournments, manipulations, exorbitant
legal fees amongst others are absent in the ADR processes. The use of ADR, Uwazie noted
places much emphasis on mediation as it focus mainly on the interest of parties unlike their
negotiation positions. With mediation, claimants are offered to be heard and processes to
ensure that parties arrive at a mutually beneficial solution with the believe that their positions
have already been considered with seriousness, they easily embrace the resolution because their
participation guarantees the integrity of the process. ADR with emphasis on mediation in the

18
Ernest Uwazie, (2011) Alternative Dispute Resolution In Africa: Preventing Conflict And Enhancing Stability,
Africa Center for Strategic studies, pg 2
19
ibid

9
assertion of the author has saved many courts around the world to reduce the backlog of cases,
delays, costs to litigants, fair and prompt justice delivery and offer parties the opportunity to
have control over their case resolution without feeling a sense of being side lined. On the track
record of ADR in Africa, Uwazie further states that the idea of ADR is in tandem with
traditional concept of African justice due to its core values of reconciliation.

Positive results from the pioneering ADR projects in Ghana, Ethopia and Nigeria in
2003 were a manifestation that ADR is suitable in African settings20. He concluded by saying
that the use of ADR can serve as an effective dispute settlement system and close the gap
between formal legal system and traditional modes of African justice. Its institutionalisation
into the legal system of Africa will ensure security and development. For the institution of
ADR in African dispute resolution system, he calls on governments and international partners
to invest in training and infrastructural support for ADR networks composed of mediators and
advocates to ensure the continuous advancement of best practice. He also calls for capacity
building training for legal professionals, religious leaders, traditional authorities, election
officials, police and security personnel among others. The creation of appropriate incentives for
stake holders is also necessary to broaden the adoption of ADR mechanisms.

Uwazie’s thesis is relevant to this work because its emphasises the use of timely, trusted
mechanisms in resolving dispute as a way of ensuring peace, security and good governance in
Africa. However his analysis of ADR does not touch the socio-cultural and political- traditional
discrepancies which could stifle smooth implementation of ADR operations in those countries.
Despite these concerns, ADR can succeed when all stake holders give the needed support it’s
deserved to flourish.

1.10 DEFINITION OF KEY TERMS

The acronym ADR is pregnant with abundant meanings. ‘A’ stands for Alternative, ‘D’
signifies Dispute while ‘R’ indicates Resolution.

• Alternative21

20
Ernest E. Uwazie (2018) Peace and Conflict Resolution in Africa; Lessons and Opportunities, Cambridge
Schorlars Publishing, 1st edition, Pg 3
21
Oxford Advance Learners Dictionary 8th edition, Oxford University Press, page 126

10
 The word means the possibility of options. That is the availability of other choices. As
per the oxford advance learners dictionary, it is the possibility of having two or more choices.

• Dispute22

It has been defined by John Burton23 as a short term disagreement that can be
resolved. In legal context, a dispute is a disagreement on a point of law or fact over certain
legal rights, obligations and interest between two or more parties. It should be noted that
though used interchangeably, there is a fine line between a dispute and a conflict. A conflict
differs from a dispute in the sense that a conflict can take a very long time to be solved. John
Burton a magnet in dispute resolution, holds that; conflicts are born when disputes are poorly
managed.

• Resolution

This signifies a settlement or agreement over a particular issue.

Bringing all together, Alternative Dispute Resolution as per this researcher will mean other
options available to settle or resolve dispute or disagreements. Susan Blake et al24, define it as a
range of alternatives to litigation that might be available to a lawyer and client to resolve civil
dispute

The second edition of the ‘Glossary of terms and concepts in peace and conflicts studies’,
defines Alternative Dispute Resolution as a wide range of procedures and approaches other
than litigation that aims to identify resolutions to conflicts that will be mutually accepted by the
constituent parties. It is commonly known as out of court settlement.

1.11 Organisational layout

This research is structured around five chapters.

22
Christopher E.(2005) Glossary of Terms and Concepts in Peace and Conflict Studies, 2nd edition, University for
Peace Publishers, pg 22
23
Burton, John W. (1990), Conflict: Resolution and Prevention. New York, St Martins Press, Pg 45
24
Susan Blake et al. ( 2016), A Practical Approach To Alternative Dispute Resolution, available at
https://www.amazon.co.uk. Retrieved 10 February 2020 at 10am

11
While chapter one establishes the research design, chapter two concentrates on adumbrating the
mechanisms and features of ADR. Chapter three examines the laws and institutions of ADR in
Cameroon. Chapter four continues with the challenges of ADR in Cameroon while chapter five
cements the work with the conclusion and recommendations for the utilisation of ADR in
central Africa in general and Cameroon in particular.

12
 CHAPTER TWO

MECHANISMS, MERITS AND DEMERITS OF ADR

2.0 Introduction

The quest for ADR was fertilise due to increasing failures on the part of the courts in
administering justice when dispute arises. In the case of; the People v Eta Martin and others,25
The elder Brother of the victim made the below statement
“I have chosen to take another method since the government has failed to address our
issue. The only method I can use now is violence because am hurt and the government has
neglected our feelings. I will go and pounce on the murderer and kill him the same way he
killed my Brother”
Though the statement made above relates to a criminal matter which is not the province of
ADR, it is not different from those made by victims of civil wrongs committed daily. It is a
truism that many Cameroonians have lost interest in the nations courts capacity in providing a
timely and just termination to their grievances. A survey conducted in Cameroon early 2019
reveals that only 5 percent of criminal and civil disputes were taken to a formal court, 40
percent sought resolutions through informal mechanisms while the rest 55 percent26 went to no
forum at all. The above included cases were the civil claimants felt the need to take justice into
their own hands at the risk of violent consequences.
In post conflicts27 and fragile context where societal tensions are already high and
justice system typically do not function, the desire for prompt resolution of dispute is
particularly critical. Without timely, accessible, affordable and trusted mechanisms to resolve
differences, local disagreements or crimes can generate into broader conflicts which can
contribute to cultural violence and mob justice. Thus, it is the interest of every government to
set up a sound, clean and fair judicial system which will provide satisfactory solution to worries
of disputants. This has not been the case in Cameroon because the courts28 are fraught with
systematic problems such as antiquated structures, countless judges still take note by hand as

25
The People v Eta Martin, unreported judgment of April 1998, Suit No. HCSW/29mc/98
26
Ebong lesly, (2019) A Survey On Litigations In Cameroon: Positive Or Negative ?, Unpublished Masters Thesis(
University of Dschang ).
27
Ernest Uwazie, (2011) Alternative Dispute Resolution In Africa: Preventing Conflict And Enhancing Stability.
Africa Center for Strategic studies, pg 2
28
See http//en.wikipedia.org/wiki/alternative dispute resolution, visited 12/02/2020 at 1:00am

13
there are no stenographers. Records are archived manually and a reliable computer in a
Cameroonian court is rare especially at the magistrate court that handle most cases. The biggest
problem is over crowding because many judges have 100 cases per day on their desk, a number
impossible to adjudicate within a prescribe time. It can take many years to get to trial and
months to have a motion heard.
Disputants often express frustration of the “come today, come tomorrow” syndrome and
the mounting of legal fees for professional representation with it futile court appearances. The
biased judgement often cause more harm than good. No wonder a Nigerian lawyer puts it this
way29;
“When the judge proclaims a winner, that is the beginning of the real conflict”
Again it is not uncommon in Cameroon courts for a dispute to take a decade or more before
reaching resolution. A foreign diplomat in East Africa once joke that;
“It is easier for one to pass through the mouth of a lion than go through … legal system”
The plethora of problems highlighted above has diluted the taste of disputants from
using the formal method of solving dispute to adjudicate their issues. Their interest has shifted
towards the alternatives ways of settling disputes popularly known as ADR. The question that
comes to ones mind is; What is ADR? ADR is simply other methods of pursuing justice
different from court processes. It is commonly known as “Out of Court Settlement”. From the
definition, it is quite clear that ADR must have its own processes or mechanisms since it is
almost evasive to render justice without running through procedures. Thus the interest of this
chapter will be surrounded on the mechanisms of ADR. We will also look at the Merits and
Demerits of the mechanisms.
2.1 Mechanisms of ADR

Mechanisms of ADR are the processes or procedures of entertaining dispute through

ADR. This processes include; conciliation, Negotiation, Mediation and Arbitration. Each will
be detailed infra30

29
Ladan M.T.(2004) “ Alternative Dispute Resolution In Nigeria: Benefits, Processes and Enforcement “. Current
Themes in Nigerian Law Pg 248
30
Infra means below

14
2.1.1 Conciliation

Conciliation is an ADR process which consist of converging disputants with the aim of
entertaining and resolving their dispute. The main importance of conciliation is to assist parties
settle their issues amicably with the aid of a neutral conciliator who is respected by the parties.
Unlike in arbitration, the conciliator does not provide a decision for the parties, rather the
conciliator helps the parties through facilitation in reaching an agreement. A conciliator merely
propose a solution to the parties to select the best. An applauding factor of conciliation stems
from the fact that the enforcement of the decision can be easier since the decision is established
by the parties31. Conciliation is a very important process of settling dispute in Cameroon
especially in the area of sport. That is why the law32 relating to the organisation and promotion
of physical and sports activities in Cameroon, holds that the National Olympic and Sportive
Committee can seek ways to solve sport dispute or opposition of the federation through
conciliation and arbitration as demanded by the parties and with respect to the practices of the
international Olympic Committee. With response to frequent sport dispute, the national
Olympic and Sport Committee has established a chamber of conciliation and arbitration whose
decision can be subjected to recourse only at the sport arbitral tribunal as per Article 58(2) and
59(1).
2.1.2 Negotiation

Negotiation is a primary step of settling dispute via ADR. It consist of a dialogue

between two or more people or parties intended to reach a beneficial outcome which can be for
all the parties involve or just for one or some of them33. It is aimed to resolve point of
difference to gain collective advantage by crafting an outcome that can satisfy the interest of
the various parties. It is often conducted by putting forward a position and making small
concessions to achieve an agreement. The degree to which the negotiating parties trust each
other to implement the negotiated solution is a major factor in determining whether the

31
http://www.dispute-resolution-hamburg.com/conciliation/what-is-conciliation lastly visited 15 February 2020
at 2 am
32
Law no 2011/022 of 21 December 2011 relating to the organisation and promotion of Physical and Sports
activities in Cameroon
33
https://www.skillsyouneed.com/ips/negotiation.html lastly visited 15 February 2020 at 12am

15
negotiations are successful. Negotiation is not a zero34-sum game because if there is no
corporation, the negotiation fails.
Everyone negotiates daily, often without considering it a negotiation. Negotiation
occurs in business, non profit organisations, government branches, legal proceedings, among
nations, in family situations like marriage, divorce and parenting. The study of the subject is
called negotiation theory. Professional negotiations do exist, they include; union negotiations,
leverage buyout negotiators, peace negotiators. They may also work under other titles such as
diplomats, legislators or brokers.35
This researcher is of the view that a good negotiator should be capable of understanding
substantive law, procedural law, and cultural differences and must be of high ethical standard.
Just like courts establish procedures to arrive at a given conclusion, negotiation also has
procedures which consist of;
(a) Indentifying the interest of the parties.
(b) Establishing proposals with defences
(c) Drafting a mechanism for the agreement that need to be worked out
(d) Packaging all the details of final agreement
Though the above processes seems easy, it is still difficult for dispute to be resolved
through negotiation may be because of familiarity between the parties since the disputes must
be heard by the disputants themselves. As per this researcher, a typical example of a case where
the parties failed to resolve their dispute through negotiation is the Anglophone Crises between
lawyers and teachers v the Government. From the above, many have question the veracity of
negotiation in resolving disputes. A response to this could be that the canons of negotiation
were probably not followed or respected. Still in Cameroon, negotiation was very instrumental
in the resolution of the contested oil rich Bakassi peninsula between Cameroon and Nigeria36.
Though the conflict was finally resolved through mediation, its unarguable that negotiation set
the pace for settlement. From the above, one can conclude that is of a better détente. When
negotiation fails, the parties left with no choice but proceed to a more sophisticated of ADR
called Mediation.
34
Gregory B. (2008) , “ Against Gridlock the Viability of Interest Based Legislative Negotiation”, Harvard law
and policy review( online) vol 3, page 1
35
https://www.investopedia.com/terms/n/negotiation.asp lastly consulted February 2020 at 2 am
36
Pieter H. (2003) Land and Maritime Boundary Between Cameroon and Nigeria, American Journal of
International Law, vol 97, issue 2, pg 387-398

16
2.1.3 Mediation

Mediation is the second step of ADR process which consist of a neutral third party
assisting the disputing parties in resolving their disputes through the use of specialise
communication and negotiation techniques. All participants in the mediation actively
participate in the process. Mediation37 is a “party – centred” process in that it is focused
primarily on the needs, rights and interest of the parties. A mediator uses a wide variety of
techniques38 to guide the process in a constructive direction and to help the parties find their
optimal solution.
A mediator can be facilitative and evaluative depending on the situation. A mediator is
facilitative in that he or she manages the interaction between the parties and facilitates open
communication. A mediator is evaluative when he or she analysis issues and relevant norms
(reality testing) while refraining from providing prescriptive advice to the parties (example You
Must Do). Mediation is more sophisticated than negotiation in the sense that it is well
structured and has a time table and dynamics that negotiation lacks. The mediation process is
private and confidential and could be possible enforce by law. More to it is that mediation has
gained international recognition as a peaceful means of settling disputes of any magnitude.
Mediators use various techniques to improve dialogue and empathy between disputants,
aiming to help reach an agreement. This depends on the mediators skill and training
programmes, certifications and licensing have been provided by mediation institutions as an
attempt to trained professional mediators who are committed to the discipline. In Cameroon,
mediation has been hugely instrumental since the end of the conflict at the Bakassi peninsula
was through mediation on the 10th of October 200239. Seeing the possibility of resolving a
dispute of the magnitude via mediation, many Cameroonians believe that the Anglophone
Crises could be resolve following same process. Despite the strength of mediation in solving
disputes, many people still do not feel satisfied entertaining dispute through this means, some
even contest and deny the application. This is because the mediator lacks the legal capacity to

37
Vidhi S,(2010), Mediation A Preferred Method of Resolving Dispute , International Journal of Law and
Humanities vol 1, issue 5 pg 3-4
38
Wikipedia ; mediation ( march 2019) lastly consulted 15 February 2010 at 2pm
39
Nicholas k and Sam B, (2010) The Cameroon and Nigeria Negotiation Process over the Contested Oil rich
Bakassi Peninsula. Journal of Alternative Perspective in the Social Sciences , vol 2, issue 1, pg 198-210

17
enforce the mediated results; besides courts feel reluctant to enforce such results. Thus many
think it is safest to journey through arbitration since its award is legally enforceable.
2.1.4 Arbitration

Arbitration is the supreme stage of ADR which involves the presence of a third party
called the arbitrator whose decision concerning the dispute is binding upon the parties40.
Arbitration is often used for the resolution of commercial disputes particularly in the context of
international commercial transactions. In certain countries such as the USA41, Arbitration is
frequently employed in consumer and employment matters where arbitration maybe demanded
by the terms of employment or commercial contracts.
Arbitration can be either voluntary or mandatory42. Mandatory arbitration emanates
from statutes or from a contract that is voluntarily entered into, where the parties agree to hold
all existing or future disputes to arbitration without necessarily knowing specifically what
dispute will ever occur. Arbitration can be binding and non –binding. Non binding arbitration is
akin to mediation in that a decision cannot be impose on the parties. However, the principal
difference is that whereas a mediator will try to help the parties find a middle ground for them
to compromise, the non binding arbitrator( just like a mediator) is totally removed from the
settlement process and will only give a determination of liability and if appropriate, an
indication of the quantum of damage to be paid. Its worth knowing that in the conclusion of
many, non binding Arbitration is no arbitration.
In a more recent classification, arbitration has been divided into Ad hoc and
Institutional Arbitration.
2.1.4.1 Institutional Arbitration

Institutional arbitration43 is a form of Arbitration that is done in a specialise institution

which intervened and plays the role of administering the arbitration process. Here each
institution provides a framework for the arbitration and its own form of administration to assist

40
Gary B, (2012), International Arbitration: Law and Practice. Kluwer Law International, 3rd edition, Pg 21-23
41
Gary B. (2006), International Civil Litigation in United States Courts . Aspen, 4 th edition, pg 67-69
42
Voluntary Arbitration exist when the Parties decides to entertain their dispute through Arbitration by inserting
an Arbitration Clause in their Contract. While mandatory Arbitration exist when the Parties are referred to an
Arbitral Tribunal by a Judge
43
Institutional vs. Ad hoc Arbitration, available https://www.pinsentmasons.com/out-law/guides lastly visited
February 15 2020, at 2pm

18
in the process. Some common institutions are the London Court of International Arbitration (
LCIA), the International Chamber of Commerce ( ICC), International Center for the Settlement
of Investment Dispute ( ICSID), the Common Court of Justice and Arbitration (CCJA). There
are approximately 1200 institutions world wide which offer arbitration services and some deal
with a particular trade or industry. Often, the contract between two parties will designate a
particular institution as the arbitration administrator. Its worthy of note that institutional
arbitration has its Merits as well as Demerits
2.1.4.1.1 Merits of Institutional Arbitration

Merits of Institutional Arbitration are the encouraging factor or the benefits that a user
will derive by using this method to resolve their dispute
• It has established rules and procedures which ensures the arbitration proceedings begins in
a timely manner.
• Administrative assistance from the institution which provide a secretariat or court of
arbitration
• A list of qualified arbitrators to choose from
2.1.4.1.2 Demerits of Institutional Arbitration

• Administering fees for services and use of the facilities which can be considerable if there
is a huge dispute, sometimes more than the actual amount in dispute.
• Bureaucracy from within the institution can lead to delays and additional costs
• The parties maybe required to respond within unrealistic time frames
2.1.4.2 Ad hoc Arbitration

This type of arbitration is not administered by an institution such as ICC and ICSID.
Here the parties decides all aspect of the arbitration consisting of the number of arbitrators
conducting the arbitration. Provided the parties approach the arbitrator with corporation, ad hoc
proceedings have the potential of being more flexible, faster and cheaper than institutional
arbitration proceedings. The absence of administrative fee alone provides an excellent incentive
to use the ad hoc procedure44. The arbitration45 agreement may simply state that dispute

44
Stephen K. (2009), State Regulation of Arbitration Proceedings: Judicial Review of Arbitration Awards by State
Courts. Research Gate, Page 7-9
45
Ibid

19
between parties will be arbitrated. It is infinitely preferable to specify the seat of the arbitration
as well since this will have a significant impact on several vital issues such as the procedural
laws governing the arbitration, and the enforceability of the award. If the parties cannot agree
on the detail, all unresolved problems and questions relating to the implementation of
arbitration, for example how the proceedings will be conducted. As a response, its good to say
that it will be determined by the “seat” or location of the arbitration. However this approach
will prevail only when the seat of the arbitration has an establish arbitration law. Ad hoc
arbitration has its strength and weaknesses.
2.1.4.2.1 Strength of Ad hoc arbitration

Strength stands for advantage. So we will be looking at below, the attributes that makes
Ad hoc arbitration remarkable and preferable. They include;
• Its flexible since the parties decides the resolution procedure themselves
• Its less expensive since the parties will just be required to pay their lawyer or
representatives and the cost incurred in conducting the proceedings rather than
paying fees to an arbitration institution.
2.1..2.2 Weakness of Ad hoc

Since nothing can be perfect, we cannot exit this portion without glancing at the weakness of
ad hoc arbitration
• Deciding the rules and choice of arbitration may be time consuming for parties that
cannot compromise46.
After seeing the various types of arbitration, its necessary that we adumbrate and expatiate on
the merits and demerits of ADR. This process will naturally exposed the neat line that exist
between ADR and Court litigation.
2.2. Merits And Demerits of ADR

The ADR mechanisms above have distinct features from litigation. It is therefore the
province of this section to examine the features of ADR and match it with the demerits of the
process since its uncommon to see a perfect process. The merits includes; informality, multiple
parties, application of equity, direct participation and communication between the parties,

46
Interview with Barrister Nkongho George, Yaounde 19 January 2020

20
relationship of the parties. The disadvantages consist of; absence of appeal, limited or no
discovery, reluctance in enforcing arbitral awards47.
2.2.1 Merits of ADR

Merits are the features or advantages. This advantages will be seen below
2.2.1.1 Informality

ADR Mechanisms48 are less formal than litigation processes. With ADR mechanisms,
the procedures are flexible, without formal pleadings, extensive written documentation or rules
of evidence as compared to litigation. This informality is appealing and important for
increasing access to dispute settlement for the population that maybe intimidated or unable to
participate in formal systems. With respect to the informal nature of ADR processes, parties
decide the manner in which they want their dispute to be resolve. The parties have the privilege
to participate and agree on their own suitable time limits
2.2.1.2 Multiple Parties

Many disputes entertained by ADR often involve the presence of multiple parties such
as government, public interest groups or non governmental organisations, private companies
and private individuals. Each of these parties have different ideological perspectives, strategies
and potentials to converge in dispute resolution. ADR takes into consideration the interest of
several parties blend interconnected issues, numerous decisions makers, scientific and technical
uncertainty and various corridors in which problems can be hugely resolved.
2.2.1.3 Application of Equity

ADR support the application of equity rather than the rule of law. All disputes are
resolved through negotiation among the parties and with the aid of a neutral third party. The
neutral third party establishes terms that seem equitable in a particular case. These principles
and terms serve as guidelines for the parties as well as the third party. This alone reassures
equal treatment among the parties in a dispute. ADR mechanisms provide easy access to justice
to the marginalised groups of people in a given society.

47
https://www.lorman.com/resources , retrieved 16/02/2020 at 6am
48
Ngombane S. (2018), Alternative Dispute Resolution: A Mechanism for Resolving Environmental Disputes in
South Africa.( Masters thesis), University of the Free State, South Africa, pg 1-3

21
2.2.1.4 Direct Participation Among The Parties

ADR mechanisms ensure direct participation of the disputants by allowing them

establish rules and build possibilities for settlement. Its also provide a room for dialogue and an
opportunity for reconciliation among disputants. Through opening for participation, the parties
can establish the duration of the hearing. This is a striking factor of ADR to court processes.
2.2.1.5 Safeguard Relationship of The Parties

The most striking factor of ADR mechanisms is that they preserve the relationship of
the parties. This is unique feature as opposed to the confrontational and legalistic approach of
litigation. Many disputes occur in the context of relationship that will continue over future
years. Unlike ligation, a settlement reach in ADR addresses all the interest of the parties. This
usually helps to safeguard a working relationship in a ways that will be impossible in litigation
which is often perceived as rigid and intimidating. In Townsend–Turner and Another v
Morrow,49 the full bench of the Western Cape Division observed that litigation had only
succeeded in increasing the hostilities between the parties. The court proclaimed that ADR
preserve relationship and in the event where such relationships are not working, ADR makes
termination there of more amicable.
2.2.1.6 Use of Neutral Third Party With No Decision Marking Capacity

ADR has a particular attractive feature consist of the utilisation50 of a neutral third party
chosen by the parties. This is hugely competing with litigation which does not allow parties to
choose a presiding judge to entertain their dispute. The judge presiding a case will have to work
in accordance with already established laws and at sometimes be poised to take orders from he
who designated a specific task to him. This disturbing factor often make him partial and may
have his decision influenced. While in ADR processes, the third party is neutral and impartial
since he is chosen by the parties who will not give him orders. Again his impartiality51 maybe
derived from the fact that he has no interest In the dispute. The party only uses his skill to
isolate underlying interest and uses the information available to him to identify common

49
Townsend – Turner and Another v Morrow ( 524/2003, 6055/2003) zawchc53
50
Mirindo F. (2008), Environmental Dispute Resolution in Tanzania and South Africa : A Comparative
Assessment in the Light of International Best Practice. Masters Thesis, University of Western Cape, South Africa
51
Sriram P. ( 2011), Mediation : Practice and Law. LexisNexis Butterworths Wadhwa, 2nd edition, pg 64-65

22
ground and establish base on his or her legal and other knowledge, sensitive and encouraging
settlement among the parties.
In MB and NB52, the court remarked that part of the third party’s role included an
evaluation of the prospect of success in litigation and appreciation of the cost and practical
consequences of continued litigation. The appointed party helps the parties to indentify
significant issues help them decide how to resolve it themselves. The third party maintains a
reasonable expectation of confidentiality depending on the circumstances of the proceeding and
any agreements they make, the parties retain control over the process and the outcome of the
case still lies with the parties.
2.2.1.7 Cost Effect

Court processes can take an usual duration just to arrive a conclusion. This delay is
accompanied by a very expensive bill. That’s why in mb v nb (supra), the court did not face
difficulty in holding that litigation is expensive. The Court added that the parties would have
explored cheaper means of resolving their dispute. The court strongly recommended that the
parties should have used mediation as a means to resolve their dispute in order to save costs to
their estates.
This researcher submit that the government can save money spent on litigation if it can ideally
use ADR. The Supreme Court of appeal in S v J53 endorsed the dictum in mb v nb (supra) by
holding that mediation in family matters is an important way of avoiding prolonged and
expensive legal battles and that litigation should not necessarily be the first trial. These among
others illustrate the fact that even courts are mindful of the potential of ADR in settling dispute.
It has also been submitted that courts have accepted ADR as the primary option of dispute
settlement since it a cheaper mechanism of obtaining justice. This further exposes the fact that
ADR can compliment litigation, it means it has the potential to increase access to justice to the
disadvantage groups of the society.
2.2.1.8 Privacy

Litigation takes place in open court given room for both the public and the media to
have access to it proceedings. Whereas ADR processes unfolds in a private and confidential

52
Jean C et al. (2010), ADR: Practices and Issues Across Countries and Cultures, Kluwer Law International, vol 2,
pg 202-204
53
S v J, (695/10), (2010) ZASCA 139.

23
arena. This ensures that sensitive information’s from the parties are not disseminated to the
public. Unlike litigation, the parties to a dispute choose who may have access to the
proceedings.
From the above its evident that the merits of ADR are enormous and appealing but
does not prevent it from having a negative side or demerits. What now are the demerits or
disadvantages of ADR?
2.2.2 Demerits of ADR

We have just a paucity amount of disadvantages of ADR. They consist of;

2.2.2.1 Absence of Appeal

A limited or no avenue for appeal is dangerous because an erroneous decision

cannot be easily overturned.
2.2.2.2 Limited or No Discovery

Since the process is swift, the mediator may not have ample time to carry out research or
investigation concerning the issue. Unlike the courts with judicial police at their disposal for
investigation, ADR experts do not have this opportunity. So the experts may base only on facts
presented to them without any extrinsic findings.

2.2.2.3 Reluctance In The Enforcement of Arbitral Awards

Arbitral awards are not enforceable directly as they must go through the courts for
enforcement. Many at times, enforcement of an arbitral award lies at the mercy of a particular
judge.54 This is disturbing because a judge that is biased about ADR processes will hardly
enforce an award from it. This is a very weakening factor for ADR since a judge will scarcely
be punished for refusing to enforce an arbitral award. To ease understanding of the above
features of ADR by the reader, the researcher has crafted a formula below.

Advantages of ADR can be summarise as;

P--------------Privacy

I ---------------Informality

54
Ndeugwe B. (2015) The Enforcement of Arbitral Award in Cameroon. Available at http://ssm.com/abstract pg 2

24
M--------------Multiple Parties

A---------------Application of Equity

S----------------Safeguard of Relationship

U ---------------Use of A Neutral Third Party

C ----------------Cost Effect

Disadvantages of ADR can be summarised as;

R ----------------Reluctance in Enforcing Arbitral Awards

A ----------------Absence of Appeal

L -----------------Limited or No Discovery.

2.3.2.3 Conclusion

From the above analysis, it is crystal clear that the merits of ADR go beyond the disadvantages
leaving us with the confidence that it is a positive process. With the awareness of the numerous
advantages of ADR, it is our believe that disputants will begin to consider ADR as a safe and
easy means of entertaining their dispute

25
 CHAPTER THREE

LEGAL AND INSTITUTIONAL FRAMEWORK OF ADR

3.0 Introduction

As regularly mentioned in the previous pages, ADR has received international

recognition and favour from many countries concerned with its effective implementation. This
growing interest on the subject has influence the creation of laws and institutions at the
international and national level with the healthy aim of satisfying commercial disputants with
the provisions of a sound judicial system. Thus the concern of this paper is to navigate through
the laws firstly (part one) and secondly (part two) institutions regulating the proper functioning
of this private system both at the international and national scene. While performing this
exercise, my legal glasses will be directed towards Universal Regional and National Frame
work and Institutions.

3.1 Legal Framework of ADR

Legal frameworks55 constitute a conglomeration of laws, treaties, conventions, customs

and judicial decisions (popularly known as case law) aimed at structuring, directing and
implementing the ADR process. They spring from universal, regional and national agreements
of states.

3.1.1 Universal Agreements

Universal agreements are accords which cuts across nations from the different regions and sub
regions of the world.The agreements are arrived at in Conventions or conferences held to
discuss a particular issue affecting the world either positively or negatively. More often than
not, these conventions are initiated by the United Nations. These agreements depending on
their nature often turn out be laws regulating a particular issue plaguing the world. Agreements
of universal magnitude often give birth to two categories of laws that is soft laws56 and hard

55
Evelyn A. (2007), Legal Framework For Alternative Dispute Resolution, Journal of Professional Issues in
Engineering Education and Practice, vol 5, pg 37-46
56
Soft Law instruments are instruments which are not binding on the signatories due to lack of sanctions and
implementative mechanisms such as an international police to ensure that defaulters are punished.

26
law57. It should be noted that most of the universal instruments concerning ADR fall under the
initial category. The Universal Instruments regulating ADR constitutes;

3.1.1.1 UN Charter

The 1945 United Nation Charter is the mother treaty of the United Nations. The UN
Charter articulates a commitment to promote human rights of citizens and adumbrate a broad
set of principles58 relating to achieving higher standards of living, addressing economic, social,
health, and related problems without leaving universal respect for and observance of human
rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
It is a constituent treaty and all members are bound by its articles. Furthermore, article 103 of
the Charter posits that obligations59 to the United Nations prevail over all other treaty
obligations. It is worthy to note that the UN is much concern on how state could resolve their
dispute or differences. It is a traditional rule that where human beings gather, conflict must
exist. Searching for a resolution mechanism became a pre-occupation to the UN. After a
thorough search, all fingers were pointing at the ADR as the best method of entertaining
disputes among member states. These states further diagnosed negotiations to be a better
process of solving their differences.

Article 1 and 2of the Charter supports the proposition that member states should settle
disputes by peaceful means and resolve common problems through cooperation. It is however,
doubtful that many of these provisions impose general obligations on member states to
negotiate in the absence of more specific directives found in other Charter provisions. For
example article 2 (3) provides that

“All members shall settle their international disputes by peaceful means in such a manner
that international peace and security, justice are not endangered”.

While there is considerable uncertainty concerning the scope and import of this very
general proposition, it is probably safe to say that it does not create an obligation for member
states to negotiate. Also the principle of good faith, which is referred to in article 2 (2)has been

57
Hard law is the reverse of soft law.
58
Charter of the United Nations, available at Wikipedia. Retrieved 10/02/2020 at 3:45pm
59
Border and Transborder Armed Actions ( nicar v hond) 1988 ICJ 69, 105( judgment on jurisdiction DEC 2010 )

27
by the ICJ not to be itself a source of legal obligation to negotiate existing disputes but the
principle of good faith alone does not impose an obligation to enter into negotiation.

Particular reference to negotiate appears in Article 33. Article 33 outlines safe methods
of peaceful dispute settlement in the context of the ‘pacific settlement’ procedures of chapter
660.

“The parties to any dispute, the continuance of which is likely to

endanger the maintenance of international peace and security, shall first
of all, seek a solution by negotiation enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangement or other peaceful means of their own choice”.

The exact wordings of Article 33 and its position in the Charter raise two questions at the
outset (1) Does the obligation contained in the Article extend to all disputes between States?,
(2) Does the article impose a general obligation on States or dose it impose an obligation only
within the context of the pacific settlements procedures of chapter 6?

It is clear from the wordings of Article 33 that the obligation to settle disputes by peaceful
means does not apply to all disputes, but only to those disputes “the continuance of which is
likely to endanger the maintenance of international peace and security”. It is instructive to note
the different wording of Article 2 (3) and Article 33. According to Article 2(3),61 the dispute
must be “international”. Goodrich, Hambro and Simon62 pointed out that the word
“International” was inserted in article 2 (3) which emphasize that the principle that states settle
their dispute by peaceful means does not apply to domestic disputes even though such disputes
could presumably endanger the maintenance of international peace and security. Article 3363 on
the other hand, applies to “any dispute, the continuance of which is likely to endanger the
maintenance of world peace and security”. Article 33 must be read together with article 2(7)
which provides that “

60
Goodrich et al. ( 1969), Charter of the United Nations: Commentaries and Documents. New York: Columbia
University Press, 3rd edition, pg 311-315
61
Art 1 and 2 of the UN Charterof 1945
62
ibid
63
Article 33 of the UN Charter ibid

28
 “Members are not required to submit cases which are essentially within the
domestic jurisdiction of any state to settlement under the Charter”

The current interpretation of the term domestic jurisdiction, however would seem not to
apply to any dispute which could endanger international peace and security. Therefore article
33 should be read as imposing the obligation of peaceful settlement on states involved in any
serious dispute. This reading of article 33 in light of article 2(7) is further supported by words
“Any dispute” in article 33.

With regards to the functions of article 33 in the overall scheme of the Charter, it appears
that the requirement should be read in the context of the operation of chapter 6. The phrase
“first of all” would seem to contemplate a series of events beginning with attempts of peaceful
settlement by the parties, followed by investigation by the Security Council recommendations
by the Security Council or referral by the parties of the matter to the Security Council. There
are indications in decisions of the ICJ. However the scope of article 33 maybe broader
transcending the procedures for peaceful settlement contained in chapter 6 of the Charter. The
ICJ supported these method of settlement in the North Sea Continental Shelf Cases 64 by stating
that

“The obligation to negotiate merely constitutes a special application of a principle

which underlies all international relations and which is moreover recognised in
Article 33 of the Charter of the UN as one of the methods for the peaceful
settlement of international disputes”.

This language was later quoted with approval by the court in the Fisheries Jurisdiction Cases65.

64
North Sea Continental Shelf Cases(1969), available at; https://www.refworld.org retrieved on 13/02/2020 at
5:00am. The case involve Germany v Denmark and the Netherlands, over the “ delimitation” of areas rich in oil
and gas of the continental shelf in the North sea.
65
Fisheries Jurisdiction Case (1974), available at; https://www.informea.org/en/court-decision. Lastly visited at
13/02/2020 at 5:33am. this case concerns United Kingdom and Northern Ireland v Iceland, the extension of
Iceland Fisheries Jurisdiction to the United Kingdom’s territory.

29
3.1.1.2 New York Convention on the Recognition and Enforcement of Foreign Arbitral
Azard.1958

The Convention on the recognition and enforcement of foreign Arbitral Awards, also
commonly known as the New York Convention was adopted by a United Nations Diplomatic
conference on 10th June 1958 and entered into force on 7 June 1959. The Convention require
courts of contracting states to give effects to private agreements to arbitrate awards made in
other contracting states widely considered the foundational instrument for international
arbitration, it applies to arbitrations which are not considered as domestic award in the state
where recognition and enforcement is sought. Though other international Conventions apply to
the cross-border enforcement of the arbitration awards, the New York Convention is by far the
most important.

In 1953, the International Chamber of Commerce (ICC) produced the first draft
convention on the Recognition and enforcement of international Arbitral Awards to the United
Nations Economic and Social Council (ECOSOC). With slight modifications, the ECOSOC
submitted the convention to the international conference in the spring of 1958. The conference
was chaired by Willem Schurmann66and Oscar Schachter67.

The Convention has 16 articles divided into sub articles. But with no further division
into parts. It define “foreign arbitral award” as arbitral award made in the territory of a state
other than the state where the recognition and enforcement of such awards are sought, and
arising out of differences between persons whether physical or legal. In addition, arbitral
awards in the state where their recognition is sought and enforcement are sought can be
assimilated to foreign arbitral awards as per Article 1(1) of this convention. Article IV demands
the parties applying for recognition and enforcement to provide, in the language of the nation
where enforcement or recognition is sought, the copy of the authenticated original award or a
duly certified copy therefore and the original agreement (arbitral submission) or a duly certified
copy thereof.

66
Former President of ECOSOC(1960)
67
The then Dutch permanent Representative at the United Nation.

30
3.1.1.3 Convention for the Pacific Settlement of International Disputes

The convention which can be said to be the first of its nature and content came into the
hands of leaders in the late 1890s for approval. The same document without affecting the status
of the existing one and as well the commitment of signatories, by enclosing a more detailed
stipulation came into existence in 1907. These two conventions are the founding documents of
the permanent court of justice.

The first convention has 61 article under four titles. Title 1, shortly in a single article
sets the objective of the convention and interest of the signatory nations that is

“With a review to obviating as far as possible, recourse to force

in the relations between states the contracting powers agree to
use their best efforts to ensure the pacific settlement of
international differences”

Title 2 establish the first alternatives of settling dispute among member states by using “Good
offices and mediation” and the procedures there under. The third title deals with the possibility
of establishing “international commission of inquiry” to facilitate a solution for differences of
international nature by elucidating the facts by means of an impartial and conscientious
investigation.68 The last title in depth, regulates international arbitration between the member
states. This part established the Permanent Court of Arbitration in its chapter two having its
seat at the Hague. The organisation of the tribunal the power and duties of the disputants states
before the tribunal, the jurisdiction of the court the effect and binding nature of the award has
been thoroughly discussed. At the end, the convention has got a general provision which speaks
about the rectification or membership process, the coming into force of the convention and
other matters.

Looking at the second convention, most of its contents are similar with the 1899
convention except in some circumstances. It has indeed 97 Article under its five parts. I could
say the first two parts of this convention is a literal copy of its predecessor. Under part 3 which
handles the international commission of inquiry, more detail provisions have been included as
its working procedure. Especially when the commission was placed under the supervision of

68
https://www.abyssinialaw.com/online-resources/study accessed 15/02/2020 at 6:00am

31
the International Bureau of the Permanent Court of Arbitration, which serves as a registrar. Part
IV of it included a new system which was not there under the predecessor convention. Chapter
IV establishes “Arbitration by summary procedure” in disputes requiring such a procedure. Part
V is devoted for “final provisions” regarding membership and coming into force of the
convention.

3.1.1.4 UNCITRAL69 Model law on International Commercial Arbitration

The model law is designed to assist states in reforming and modernising their laws on
arbitral procedures so as to take into account the particular features and needs of international
commercial arbitration. It covers all stages of the arbitral process from the arbitration
agreement, the composition and jurisdiction of the arbitral tribunal and the extent of court
intervention through the recognition and enforcement of arbitral award. It reflects worldwide
consensus on key aspects of international arbitration practice having been accepted by states of
all regions and the different legal or economic systems of the world.

Amendments of these Articles 1(2), 7 and 35(2) a new chapter IVA to replace article 17 and
a new article 2A were adopted by UNCITRAL on 7 July 2006. The revised version of article 7
is intended to modernise the form required for an arbitration agreement to better conform with
international contracts practices. The newly introduced chapter IV A establishes a more
comprehensive legal regime dealing with interim measures in support of arbitration. As for
2006 the standard version of the model law is the amended version70. The original 1985 text is
also reproduced in view of the many national enactments based on this original version.

Viewing the universal treaties, this researcher posits that the list of universal framework laws
on ADR have not been exhaustively discussed here. There are other important universal
agreements that have not been discussed here due to lack of priority. For the purpose of
awareness, some will be listed below

-Convention on the Settlement by Arbitration of Civil Law Disputes resulting from relations of
Economic and Scientific Technical Cooperation (Moscow Convention done at Moscow, 26
May 1972 entered into force 13 August 1973.

69
UNCITRAL in full is; United Nations Commission on International Trade law
70
Association for International Arbitration, Wikipedia 02/02/2020 at 3:45 pm

32
-Model Standards of Conduct for Mediation (August 2005)

-Resolution on Good Faith (2004)

-Code of Ethics for Commercial Arbitrations.

3.1.2 Regional framework Laws on ADR

Regional laws are laws emanating from a Conference or Convention organise and attended by
Countries of a particular Region71 or Sub Region in the world with the purpose of discussing
issues that affect only their Region or Sub Region and to draft resolutions to either combat or
promote. Here, this researcher will concentrate on the Regional laws relating to ADR. Though
not exhaustive, the Regional Laws concerning ADR consist of; OHADA and CIMA Code

3.1.2.1 OHADA Uniform Act Relating to Arbitration

On the 23 and 24 November 2017, the Council of Ministers of

OHADA72(L’organisation pour L’Harmonisation en Afrique du Droit des affaires”) adopted
three major tools aimed at favouring alternative dispute resolution mechanisms in Africa
counties. More specially, the councils of ministers adopted (i) a New Uniform Act on
Mediation,73 (ii) a Revised Uniform Act on Arbitration74, and (iii) undated Rules of Arbitration
of the Common Court of Justice and Arbitration75 (CCJA).

OHADA76 is an international organisation comprised of 17 West and Central African

Countries whose goal is to promote regional economic development through the harmonisation
of its members states business laws. Harmonisation is mainly achieved through the so-called
Uniform Acts which compiled all relevant legal norms in specific areas of business. Those

71
Examples of Regions in the World include; European Union ( EU), Association of South Asian Nations (ASEAN)
Arab League, Caribbean Community (CARICOM) and African Union (AU).
72
OHADA in English is ; the Organisation of Business Law in Africa. Its member Countries include; Benin, Burkina
Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Democratic Republic of the Congo, Equatorial
Guinea, Gabon, Guinea Bissau, Cote d’Ivoire, Mali, Niger, Senegal, and Togo.
73
The OHADA Uniform act on Mediation was adopted on 23 November 2017 in Conakry (Guinea), it was
published in the OHADA Official Journal on December 15, 2017. Entered into force on March 2018.
74
The Revised OHADA Uniform Act on Arbitration was adopted on the 23 of November 2017 replacing the
replacing the initial Text of March 1999.
75
The Revised CCJA Rules on Arbitration was adopted on the 23 November 2017
76
OHADA was established by the Treaty of 17 October 1993 signed in Port Louis ( Mauritius), and revised on the
17 of October 2008 in Quebec ( Canada).

33
Uniform Acts are directly applicable to OHADA77’s member states. As of today, OHADA has
adopted 9 Uniform Acts in the field of (i) General Commercial law, (ii) Commercial
Companies and Economic Interest Groups (iii) Securities (iv) Debt Recovery, (v) Insolvency
(vi)Arbitration (vii) Accounting (viii) Contracts for the Carriage of Goods and (ix) Cooperative
Companies. In addition OHADA also relies on specific institutions such as the CCJA which
acts as a Supreme Court in all disputes regarding the application of the Uniform Acts. The
CCJA also acts as an arbitral institution and as support judge in arbitration disputes.

In their decisions 23 and 24 November 2017, the Council of Ministers adopted and updated
three major texts

-Firstly the OHADA Council of Ministers adopted a Tenth Uniform Act on Mediation with the
aim to foster Alternative Dispute Resolution Mechanisms.

-Secondly, the Council of Ministers adopted and amended the existing Uniform Acts on
Arbitration 1999 text which among other things now provides National Courts to have
Jurisdiction.

-The principle of “Competence” which belongs to the arbitral tribunal to make a prior
determination as to its own jurisdiction, evolves prior to the new act, a State Court had
Jurisdiction over a dispute involving an arbitration clause only when the arbitral tribunal was
not yet constituted and when the arbitration clause was manifestedly void. Similarly, under
French law, this solution is extended to cases where the clause is prima facie inapplicable
thereby enabling states court to rule on disputes where the arbitration clause has obviously no
link or effects on the dispute,

-The procedure to challenge an arbitrator is revised and the party wishing to do so must start its
action within 30 days from the date when this party was informed of the facts and the
circumstances on which the challenge is based78.

77
The OHADA Treaty was ratified in Cameroon by a Presidential Decree No. 96/177 of 5th September 1996 after
the authorisation of the National Assembly through Law No. 94/4 of August 1994.
78
Article 4(2)(1) of the 2017 Revised CCJA Rules

34
-Finally, the Council of Ministers revised the CCJA’s existing arbitration rules by providing
inter alia for third party intervention and multi-party arbitration proceedings as well as
enhancing arbitrators ethical duties and obligations.79

-The Common Court now has jurisdiction to decide investments disputes brought on the basis
of Bilateral Investment Treaties80 or Investment contracts. This has been probably inspired by
the European case law on arbitrators civil liability. It is now required that the arbitrator carry
out his mission with diligence and celerity.

Going back to the first which is the newest of the OHADA, the new Uniform Act on
Mediation directly applicable to all member states establishes fundamental principles
applicable to mediation proceedings such as confidentiality81 prompt approval of the settlement
agreement and combination with other dispute resolution mechanisms. The mediator must be
and remain independent and impartial and cannot be an arbitrator in the same dispute unless
otherwise provided by the parties.

-The Uniform Act is applicable to all mediation proceedings initiated after its entry into force,
regardless of the date when the agreement to mediate was initiated. Both ad hoc institutions
mediation are covered by the provisions of the new Uniform Act without regards to who
decided to proceed with mediation be it the state judge, an arbitral tribunal, a competent public
authority or the parties themselves.

This innovations that were made public on the official journal on the 15th December 2017
and entered into force on the 15th of March 2018 has strengthen the legal framework of
alternative dispute resolution mechanisms available to the parties in the OHADA zone and
increase its attractiveness as a service place for creation of business.

3.1.2.2 ADR IN CIMA CODE

CIMA is a French acronym standing for Intern-Africaine des Marche d’Asssurance82.

The CIMA code which is the single insurance legislation for the Region, was instituted by a

79
Article 8(2)-(3) of the 2017 Revised CCJA Rules
80
Bilateral Investment Treaties are Treaties of investment between two countries
81
Article 10 and 14 of the 2017 OHADA on Mediation
82
In French, CIMA stands for; Inter-African Conference of Insurance Markets.

35
treaty signed on the 10 of July 1992 and came in to force on February 15, 1995 with the
obligation of strengthening cooperation in the insurance industry of the fourteen member
States83 in Central and West Africa.

It is no secret, that before the implementation of the CIMA code, there was total anarchy in the
region, insured parties had indeed largely lost confidence in insurance companies.

Another factor contributed to the deplorable image of the insurance industry was the
sluggishness and unpredictability with which courts took decisions. The CIMA code promotes
conciliation techniques in determining the actual amount of compensation in traffic accidents.
CIMA Mandatory Provisions aimsat finding an amicable resolution to disputes between
insurance companies and victims. These parties have at least eight to twelve months to reach
amicable settlement. However, there is no provision as to how and where this amicable
settlement is to be reached. Once the twelve months limited has expired and no such
arrangement has been reached, the parties will then have to resort to resolution of the dispute in
court.

Even though the offer of amicable resolution is clearly covered by the code, according to
certain guidelines, a result is rarely achieved. This situation leaves the victims vulnerable to the
Insurance Companies will to settle at their own best interest. Accident victims are at the mercy
of the insurance companies who are in no hurry to pay. In fact, the CIMA procedure for
amicable settlement is very questionable indeed. How is that insurance companies representing
the party accused of wrong doing but also having clear interest in the dispute can adopt an
impartial and independent position in establishing fair compensation? Is it reasonable to count
on the insurance company’s good faith with regard to the settlement process?

Clearly there is a dire need for a third neutral party to render this process more balanced.
Perhaps a mediator could fill this gap.

83
CIMA signatories include; Benin, Burkina Faso, Cameroon, Central African Republic, Congo Brazzaville, Cote
d’Ivoire, Gabon, Mali, Niger, Senegal, Chad and Togo.

36
3.1.3 National Legislation on ADR

National legislations spring from a country’s Legislators and Executives. They appear in
the form of Laws and Decrees. In Cameroon the demand for ADR84in Labour Disputes is
settled in the Cameroon Labour Code that will be discussed below

3.1.3.1The Cameroon Labour Code

Born from law No. 92/007 of 14 August 1992, the Cameroon Labour Code governs the
relationship between employer and employees. It also defines contract terms, obligations and
sanctions for defaulters.

Cognisance of the fact that dispute will always arise in the existence of such
relationship, the drafters provided two ways of settling such disputes, that is; through public
justice (Courts)85 and private justice (ADR). We are more concern with the later.

Talking about ADR, the Labour Code provides a huge space for ADR in its Article 158-165.
These articles have detailed the role of Conciliation and Arbitration in resolving labour
disputes.

Section 158(1)-(4) demands the competent Inspector of Labour and Social Insurance to
attempt an amicable settlement between the parties through Conciliation. Sub 3 places a fine of
not less than 50000 and not more than 500000 Frs for any party who fails to appear in the
meeting without appointing a representative.

Section 159 brings some veracity of the process by stating that any agreement by conciliation
shall be enforceable.

The labour code has amplified the need for ADR in labour issues by providing the Supreme
method of ADR to be a last resort after conciliation must have failed.

Article 161 outlines the board members to in times of Arbitration to be;

-Chairman (A judicial officer of the competent court of appeal)

84
Resolution of Labour Disputes through ADR under the Labour Code is found in Part IX, Chapter II entitled
Collective Disputes
85
Article 132-156 ibid

37
-Members

An Employer Assessor and a Worker Assessor.

The arbitrator here has the audacity to unleash an arbitral award for which no application for
stay of execution after 8days shall be effective on the parties.

Section 162 suggest the chairman to make recourse to experts and in general any person duly
qualified.

3.2 Institutional Framework of ADR

Institutional framework constitute the various Institutions or Centers created to resolve

disputes through ADR by using the rules established from Treaties, Conventions and Customs
like those mentioned in the early pages of this chapter. A careful and detailed study of the work
will be done downward.

3.2.1 Universal Institutions

Universal institutions are usually establishment created by a group of countries from the
different Regions of the world. The creation is regularly born from a treaty or an agreement
between these States. But this is not the case when it comes to ADR Institutions. This is
because many of the ADR Institutions were created by a single country and the Institution
reside and perform it functions in that same Country. Thus the Universality of many ADR
Institutions does not stem from the nature of their creation albeit the fact they entertain disputes
from Countries in the various Regions of the World. The ADR Institution that will be examined
in this part constitute;

3.2.1.1 Permanent Court of Arbitration (PCA)

The 1913 Permanent Court of Arbitration86 (PCA) is an intergovernmental organisation

located at the Hague in the Netherlands. The PCA is not a court in a traditional sense but
provide services of arbitral tribunal to resolve disputes that arises out of international
agreements between member States, International Organisations or private parties. The cases

86
Brooks W. (2011), Permanent of Court of Arbitration(PCA)- Arbitration Rules and International Institutions,
World Arbitration Report, 2nd edition, pg 1-3

38
engulf a range of legal issues involving territorial and maritime boundaries, sovereignty, human
rights, international investment and international and regional trade. The PCA is constituted
through two separate multilateral conventions with a combined membership of 122 states. The
organisation is not a United Nations agency87 but the PCA is an official United Nations
observer.

It should be noted that the term PCA is not a court in the conventional understanding of
that term but an administrative organisation with the object of having permanent and readily
available means to serve as the registry for the purpose of international arbitration and other
related procedures, including commission of inquiry and conciliation.

The procedure of arbitration in this court are provided in article 30 to 57 of the Hague
convention of 1899 the rule of arbitration are outlined. These rules are adopted version of pre-
existing treaties among states. They were amended in 1907, the creation of a summary
procedure for simple cases being the most conspicuous change, and were relevant in the 1920s
development of rules for the court of international justice.

The first act of parties before the PCA is the submission of “compromises” which
carries the issue and the competence of the arbitrator(s) proceedings which are then conducted
in two phases: written pleadings and oral discussion. The court retires once the debate is over to
deliberate and conclude the case by a simple majority of votes.

The decision is published as a writ, along with any dissenting opinions. Early court
decisions were countersigned by the arbitrators themselves, but in 1907 that responsibility was
passed to the President and Secretary88 of PCA. The writ is read to a public session in the
presence of the agents and lawyers of the parties to the case. The decision is binding on the
parties, and there in no mechanism for appeal.

Examples of cases entertained by PCA constitute;

87
By saying its not a United Nations agency, we mean the PCA was not created by the UN even though its follows
the rules of the UN regarding Arbitration.
88
115th Annual Report Ibid retrieved 13/02/2020 at 2:00am pg 6

39
-United State of America v Mexico over the Pious Fond of California 190289.

-France v Great Britain ( also known as the Savarker case90 (1911).

-Bangladesh v India over Bay of Bengal Maritime Boundary91 2014.

-Mauritus v United Kingdom over Chagos Marine protected area 92 (2015).

-United States v Iran93 ( Iran-united states claims tribunal) in the early 1980s the PCA helped
setup the claims tribunal.

-Sudan v Sudan Peoples Liberation Movement (ABYEI Arbitration) 2009.94

Its important to note that this cases have contributed enormously to this work because they
illustrate that ADR is the safest method of entertaining disputes among Nations, Companies
and individuals. It also illustrates some of the challenges faced by the arbitration tribunals
which is a major concern of this work.

3.2.1.2 International Chamber of Commerce (ICC)

The International Chamber of Commerce was founded in 1919 to serve world business
by promoting trade and investment, open market for goods and services, and the free flow of
capital.

The ICC has three main activities; rule setting, dispute resolution, and policy advocacy
because its member companies and associations are themselves engaged in international
business, ICC has unrivalled in making rules that governs conduct of business across borders.
Although these rules are voluntary, they are observed in countless thousands of transactions
every day and have become part of international trade.

89
https://pca-cpa.org retrieved on 13/02/2020 at 2:15am
90
https://opil.ouplaw.com lastly consulted on 13/02/2020 at 2:17am
91
https://www.dur.ac.uk lastly accessed on 13/02/2020 at 2:35 am
92
https://www.ejiltalk.org lastly consulted on 13/02/2020 at 2:45am
93
https://jusmundi.com lastly visited on 13/02/2020 at 2:47am
94
Hudson M. (1943) the Permanent Court of Arbitration. New York: the Macmillan company, 2nd edition, Pp3-36

40
 The ICC administer disputes through solution it provides to the difficulties faced in
international business. ICC Arbitration is a private procedure that leads to a binding and
enforceable decision.95

The international court of Arbitration of the ICC steers ICC Arbitration and has
received over 24000 cases since its inception in 192396. Over the past decade, the courts
workload has considerably expanded. The courts membership has also grown and covers 85
countries and territories with representatives in North America, Latin and Central America,
Africa and the Middle East and Asia, the ICC court has significantly increased its training
activities on all continents and in all major languages used in international trade.

The ICC enacted new rules on the 1st of January 2012 with the purpose of ensuring
impartiality and availability of arbitrators97. The arbitrators are now expressly required to sign a
statement confirming that they will remain impartial and independent as well as confirming
they will make themselves to take part and process the arbitrators, if appointed to the tribunal.
This is intended to minimize delays caused by arbitrators taking on too many appointments and
then having no available time to deal with them.

All clients wants to see arbitrations run as efficiently as possible, because inefficiency
simply adds to the time spent by lawyers, which in turn increase the charges to the clients.
Under the new rules, both the tribunal and the parties are required to make every effort to
conduct their arbitration in an expeditious and cost effective manner. Part of the process will be
for the tribunal to convene a case management conference at a very early stage so as to
ascertain what steps need to be taken to ensure the conduct of the case is streamlined and well
structured.

In order to avoid delays on the part of the tribunal in issuing its award, the new rules
also provide for the arbitrators to inform the parties of the date by which they are expected to
submit their draft award to the ICC court for approval. This will clearly help maintain impetus
as well as giving the parties precise information as to what is happening.

95
International Chamber of Commerce (ICC) available at Wikipedia lastly accessed February 16 2020 at 4:00pm
96
International Chamber of Commerce(ICC) available at investopedia lastly visited February 16 2020 at 4:15pm
97
Paul T. (2011) Changes to the International Chamber of Commerce Arbitration Rules, available at;
https://www.tammimi.com pg 16-17, lastly consulted on 15/02/2020 at 5:57pm.

41
An example of commercial interstate dispute is that of Australia v Croatia98 over the sales of
goods between the two countries.

3.2.1.3 World Intellectual Property Organisation (WIPO)

The WIPO Arbitration and mediation center is an interdependent part of the world
Intellectual Property Organisation (WIPO) an intergovernmental organisation whose mandate
is to promote the protection of intellectual property99. A largely self-financed organisation,
WIPO is based in Geneva Switzerland and has 184member states. WIPO has a history of over
120years going back to 1883 when the Paris Convention for the Protection of the Industrial
Property was adopted and in 1886 when the Berne Convention for the Protection of Literary
and Artistic Works was adopted. WIPO administers 24 multilateral intellectual property
treaties, including the Patent Cooperation Treaty (PCT) and the Madrid system, which
facilitates Patent and Trademark applications and registration in different countries.

Based in Geneva Switzerland, the WIPO arbitration and mediation center was
established in 1994 to promote the resolution of IT100 and related disputes through alternative
dispute resolution (ADR). To achieve this objective, it developed with active involvement of
ADR and IT practitioners and scholars. The WIPO mediation, Arbitration and expert
determination rules and clauses.

The center is the only international provider specializing in technology, entertainment

and IP101 disputes. Its services however are not limited to such disputes. Since its
establishment, the center has also administered arbitration involving general contractual issues,
financing transactions and employment contracts.

The center maintains a detailed data base of well over 1.500 outstanding IP and ADR
specialist who are available to act as neutrals. The centers has an extensive network of IP
disputes resolution. The center also plays a leading role in the design and implementation of

98
ICC Arbitration case No. 7153 of 1992, Case Law on UNCITRAL texts( CLOUT) abstract no. 26
99
Heike W. (2011) WIPO Arbitration and Mediation Center. World Arbitration Reporter, 2 nd edition, pg 1-2
100
IT means Information Technology. It refers to anything related to computing technology, such as networking
hardware, software, the internet or the people that work with these technologies.
101
IP means Intellectual Property.

42
tailor-made dispute resolution procedures such as the uniform domain name Dispute Resolution
Policy (UDRP). A Case Example of WIPO Trademark Arbitration102 has been provided below

“A North American software developer had registered a trademark for

communication software in the United State and Canada. A manufacturer of
computer hardware based elsewhere registered an almost identical mark for
computer hardware in a number of Asian countries. Both parties had been
engaged in legal proceedings in various jurisdiction concerning the
registration and the use of their marks. Each party had effectively prevented
the other from registering or using its mark in the jurisdictions in which it
holds prior rights. In order to facilitate the use and registration of their
respective marks worldwide, the parties entered into a co-existence
agreement which contains a WIPO arbitration clause. When the North
American company tried to register its trademark in a particular Asian
country, the application was refused because of a risk of confusion with the
prior mark held by the other party. The North -American company
requested that the other party undertake any efforts to enable it to register
its mark in that Asian country and when the other party refused, they
initiated proceedings”.

Following proposals made by the centers, the parties appointed an IP lawyer as a sole
arbitrator. In an interim award, the sole arbitrator gave effects to consensual solution suggested
by the parties, which provided for the granting by the hardware Manufacturer of a license on
appropriates terms to the North-American company including an obligation to provide periodic
reports to the other party.

3.2.1.4 International Center for the Settlement of Investment Disputes (ICSID)

International Center for the Settlement of Investment Disputes (ICSID) is an

international arbitration institution established in 1966 through the proposition of the World
Bank governor General Aron Broches for settlement of legal dispute between international

102
WIPO Arbitration Case Examples. Available at; https://www.wipo.int/amc/en/ retrieved 15/02/2020 at
6:00am

43
investors through arbitration and conciliation103. ICSID is a branch funded by the world bank
group head quarter in Washington DC United States. It is an autonomous multilateral
specialised institution to encourage international flow of investment and mitigate non-
commercial risk by a treaty drafted by the international bank for reconstruction and
development’s executive directors and signed by member countries104. As of May 2016, 153
contracting member states agreed to enforce and uphold arbitral awards in accordance with the
ICSID Convention. Cameroon ratified the ICSID Convention on 3 January 1967.105

ICSID does not conduct arbitration or conciliation proceedings itself, but offers institutional
and procedural support to conciliation commissions, tribunals, and other committees which
conduct such matters. The center has two set of rules that determine how cases will be initiated
and conducted either under the ICSID’s convention regulations and rules or the ICSID’s
additional facility rules. To be processed in accordance with ICSID convention, a legal dispute
has to exist between one of the centers contracting member states and a national of another
contracting member state. It must also be of a legal nature and relate directly to an
investment106.

A case can be processed under the ICSID additional facility rules if one of the parties to the
dispute is either not a contracting member state. However, most cases are arbitrated under
ICSID convention. Recourse to ICSID conciliation and arbitration is entirely voluntary.
However, once the parties have consented to arbitration, under the ICSID convention, neither
party can unilaterally withdraw its consent.

From its launch to 30 June 2012, ICSID has registered almost 390 dispute cases in diverse
business domains. These cases were distributed across oil, gas, and mining (25%), electricity
and other energy (13%), other industries (12%), transportation industry (11%), construction
industry (7%), financial industry (7%), information and communication industry (6%), water,
sanitry and food protection industry (4%). As of July 2012, 246 of 390 registered arbitration
cases were concluded as of 30th June 2012, the ICSID’s tribunal had resolved nearly two third
103
Lessambo F.I. (2015) “The International Center for Settlement of Investment Disputes. In: International
Financial Institutions and their Challenges. Palgrave Macmillan, New York, pg 7-9
104
Preamble Ibid
105
List of ICSID members available on ICSID website at www.worldbank.or/icsid retrieved 15/02/2020 at 9Pm
106
Paul E and Stephan K. ( 1996), “ Protecting Foreign Investment Under International Law”, New York Oceanic
Publications Inc, pg 29

44
(62%) of disputes while remainder (38%) were settled or discontinued. As of 14 May 2016,
362 of 574 (62%) registered arbitration cases were concluded107.

Conciliation commission reports were issued for 67% of the conciliation proceedings, while
33% of proceedings were discontinued. In 75% of the conciliation reports, parties failed to
reach an agreement, and only 25% recorded agreement among parties.The numerous disputes
entertained by the ICSID include;

In Klockner Industrie Anlagen Gmbh et al v the United Republic of Cameroon and

Societe Camerounaise des Engrais ( SOCAME) S.A case108, Klockner, a German and two
subsidiaries of Klockner instituted an arbitration proceeding against Cameroon and the
SOCAME S.A in April 1981 under the auspices of the ICSID for the settlement of investment
dispute. Following a number of contracts entered into in 1970s between Klockner and
Cameroon, Klockner was to supply and erect a fertilizer plant in Cameroon. The factory was to
be operated by a Cameroonian joint venture Company (SOCAME), in which Klockner was to
be responsible for technical and commercial management. The factory was supplied and
erected by Klockner but after 18 months of unprofitability and technically inadequate operation
of Klockners management, the factory was shot down in 1978. Klockner filed a request for
arbitration in April 1981, claiming the outstanding balance for the price of supplying the
factory( calculated to be CFA 2017million. The arbitrators rendered an award on 21 October
1983, in which they declared the Cameroonian debt to Klockner to be entirely discharged on
the grounds of Klockners failure to perform the contract.

In Capital Financial Holdings Luxemburg SA v Republic of Cameroon, Capital Financial

Holdings, a Luxemburg registered company constituted in 2005, acquired 46-47 per cent of the
shares in Commercial Bank Cameroon (CBC) and granted it share holders loans. CBC is a
financial company under Cameroonian law and following an audit of CBS’s activities in 2006,
the Central African Banking Commission (COBAC) took several measures which lead to CBC
being placed in Provisional administration in 2009 as a result of irregularities in certain
transactions revealed by the audit report. Thus, the Cameroon government set in motion the

107
List of ICSID concluded Cases available at https://icsid.worldbank.org lastly visited on 17/02/2020 at 3:00am
108
Ngum M. Fosoh. ( 2019) “ The Legal Framework Regulating Investment In Cameroon: A Critical Analysis,
University of Yaounde II. (Unpublished Masters Thesis). Pg 65

45
procedure for restructuring of CBC in 2013. On April 15, 2015, Capital Financial Holdings
seized the jurisdiction of ICSID and filed a complain against Cameroon for violation of the
bilateral investment treaty concluded with the Belgio-Luxembourg Economic Union. The
company complained that it had suffered expropriation of its part, contested the jurisdiction of
the tribunal based on the ICSID Convention and the BIT, it further invoked abuse of rights by
Capital Financial Holdings Limited. The ICSID tribunal in deciding the claim made by the
claimant on the Luxembourg nationality of the company, turned to Capital Finnance Holdings
Ltd nationality under the BIT, the ICSID Convention and Luxembourg law. The tribunal
analysed Luxembourg case law and arbitration decisions which discussed similar questions,
notably the Tenaris and Talta-Trading v Venezuelacase. More so, after considering other
substantive points such as the Cameroons’s consent to ICSID arbitration, the existence of a
protected investment, the tribunal declared, it lacked competence to hear the case. The
arbitrator appointed by the claimant gave a dissenting opinion contesting the analysis and
conclusion of the majority on the nationality of Capital Financial Holdings Ltd and the
existence of its investment. Considering its discretion and the existence of an abuse of process,
the tribunal ordered Capital Financial Holdings Ltd to bear all the costs of arbitration of the two
parties to the disputes, such party to settle its own expenses and legal costs. 109

In October 2012, an ICSID tribunal awarded a judgement of $1.8 billion for accidental
petroleum against the government of Ecuador110. Additionally, Ecuador had to pay $589
million in backdated compound interest and half of the cost to the tribunal, making its total
penalty around $2.4 billion. The South American country annulled a contract with the oil firm
on the grounds that it violated a clause that the company would not sell its rights to another
firm without permission. The tribunal agreed that the violation took place but judge that the
annulment was not fair and equitable treatment to the company.

Irish oil firm Tullow oil took the Ugandan government to court in November 2012 after value-
added tax (VAT) was placed on good and services. The firm purchased for its operations in the
country. The Uganda government responded that the company had no right to claim tax on such
goods prior to commencement of drilling.

109
ICSID Case No. ARB 15-18
110
Enongene E. Ebong. ( 2018) “ The Promotion of foreign Direct Investment In Cameroon: An Appraisal”,
University of Yaounde II. ( Unpublished Masters Thesis). p.55

46
Tobacco major Philip Morros sued Uruguag for alleged breaches to the Uruguay-Swiss BIT for
requiring Cigarette packs to display graphic health warnings and sued Australia under the
Australia-Hong Kong BITs for requiring plain packaging for its cigarettes. The company
claimed that the packaging requirements in both countries violates its investment.

In the context of nuclear power phase-out in Germany, Swedish Energy company Vatten fall
sought compensation from the Germany government for the premature shot-down of nuclear
plants.Similar cases include;

-Amin oil V Kuwait111

-Texaco V Libya112

-Liamco V Liberia113

-Maffezini V Spain114

3.2.1.5 London Court of International Arbitration (LCIA)

The London Court of International Arbitration was established in 1892 as an institution

for commercial dispute resolution. The foundation of the LCIA Arbitration court in 1985
represented a major step towards the internationalisation of the LCIA. The institution
administers disputes through presentation of resolution proceedings for parties, regardless of
their membership location and system of law.

The LCIA is a non-profit organisation which operates under a three-tier structure,

comprising of the company, the arbitration court and the secretariats supported by five users
councils around the world115. This LCIA provides a comprehensive international dispute
resolution service both under its own arbitration and mediation rules and under the UNCITRAL
rules. Tailor-made dispute resolution is also offered. The subject matter of contracts in dispute
referred to LCIA include all aspects of international commerce, including in particular

111
Facts of Case available at https://www.trans-lex.org retrieved 16/02/2020 at 3:33am
112
https://www-casebriefs.com.cdn lastly visited 16/02/2020 at 3:37am
113
https://www.org.wti.org. lastly consulted 16/02/2020 at 3:45am
114
https://www.iisd.org retrieved 16/02/2020 at 3:50am
115
The London Court of Arbitration. Available at https://www-acerislaw-com.cdn lastly visited on 16/02/2020 at
6:09am

47
telecommunication, insurance, oil and gas exploration, construction, shipping, aviation,
pharmaceuticals, IT, finance and banking116. The LCIA court control effective operation and
application of LCIA Rules, the running of the proceeding and all this matters related to the
appointment of arbitrators including the appointment of the president himself.

The LCIA secretariat based at the international dispute resolution centre in London is
responsible for the day to day administration of all arbitrations and mediation whether or not
under the LCIA rules. It supervises and supports the proceeding, provide information and
advice to the parties, their representatives, the tribunals and to the members. When hearings are
outside the UK, administrative services are provided jointly by the secretariat and an
appropriate local arbitration institution.

3.2.1.6 Court of Arbitration for Sport (CAS)

The Court of Arbitration for Sport (CAS) or Tribunal Arbitral du Sport (TAS) in
French, is an international quasi-judicial body established to settle disputes related to sports
through arbitration. Its headquarter is in Lausanne (Switzerland) and its courts are located in
New York City Sydney and Lausanne although temporary courts are established in current
Olympic host cities.

Generally speaking, a dispute may be submitted to CAS only if there is an arbitration

agreement between the parties which specifies recourse to CAS. However, according to Rules
61 of the Olympic charter117, all disputes in connection with Olympic Games can only be
submitted to CAS and all Olympic International Federation (IF) have recognised the
jurisdiction of CAS for at least some disputes. Through compliance with the 2009 World Anti-
Doping Code, all signatories including all Olympic International Federations and National
Olympic committees, have recognised the jurisdiction of CAS for anti-doping rule violations.
Starting in 2016, an anti-doping division of CAS judges doping cases at the Olympic games,
replacing the TOC disciplinary commission118. These decisions can be appealed to CAS ad hoc

116
Theologidou M. (2015) Interim Measures in International Commercial Arbitration under the ICC, LCIA and DIS
Rules. International Hellenic University , pg 38
117
Olympic charter is a set of rules and guidelines for the organisation of the Olympic Games, and for governing
the Olympic movement origin in 2001, it was revised on the 15 of September 2017
118
Bruggemann F ( 2018). The Court of Arbitration for Sport: An Assessment of its Structure and Jurisdiction.
University of Cape Town( South Africa) Masters Thesis, p.13

48
court in the Olympic host city or if the ad hoc court is no longer available, to the permanent
CAS. The inaugural anti-doping division handled eight cases of which seven were doping cases
within its jurisdiction.

As a Swiss arbitration organisation, decisions of the CAS can be appealed to the Federal
Supreme Court of Switzerland. Appeals of arbitration decision are generally not successful, and
no evaluation of the merits is taking place and the evaluation is mainly based on whether
procedural requirement have been met, and whether the award is incomplete with public policy.
As of March 2012, there have been seven successful appeals. Six of the upheld appeals were
procedural in nature, and only once has the federal supreme court overruled a CAS decision on
the merits of the case of a Brazilian football player.

The federal court of justice in Germany ruled against the German speed-skater Claudia
Pechstein, recognising a lack of jurisdiction to revisit her case. The federal court ruled that
CAS met the requirements of a court of arbitration according to German law and that CAS’s
independence from the parties was secured by the method of selecting arbitrators and the
possibility to appeal to the Swiss federal tribunal.Examples of cases entertained by CAS
include;119

In March 2011, CAS decided its first case on an athlete biological passport (ABP) when it
suspended two Italian cyclists, Franco Pellizoti and Pietro Caucchioli, for two years based on
evidence from their blood profiles.

Prior to that, the case of Skater Claudia Pechstein had been decided on similar grounds.
Writing in 2011/2 Cas Bulletin regarding the institution of the ABP program. CAS counsel
Despina Mavromatic differentiate between the two types of causes and wrote

“Its is noteworthy that CAS had already issued an award suspending an athlete based on the
longitudinal profiling of the biological markers before the adoption of the ABP by the IF’s (
International Federations): in CAS 2009/A/1912 and 1913 ( Pechstein) the panel suspended an
Olympic athlete after the biological data showed irregular blood values. According to CAS
those abnormal values were not caused by an error occurred in a laboratory as the athlete

119
CAS Cases available at Wikipedia. Lastly consulted on 16/02/2020 at 12:58pm

49
asserted, but due to the banned manipulation of the athletes blood. The essential difference
between ABP judgement and the CAS 2009/A/1912 and 1913 consist in that in the latter case
the athlete’s blood data was drawn from a sample of athlete gave at the federations
championships and therefore not from data gathered by an official systematic program run by
the athletes union”120

Again in 2001, the court decided the case of Andreea Raducan v International Olympic
committee121. This was a controversial anti-doping case where it was fairly clear the athlete
received cold and flu tablets from a doctor. This resulted in a positive urine test, with the court
concluding;

“The panel is aware of the impact its decision will have on a fine,
young, elite, athlete. It finds, in balancing the interest of Miss Raducan
with the commitment of the Olympic movement to drug-free sport, the
anti-doping code must be enforced without compromise”.

Coming to Cameroon, CAS had declared the appeals filed by the Commoros Football
Federation inadmissible.

In Lausanne the 4th June 2019 there was a dispute between the Federation de Football des
Comoros (FFC) and the Confederation Africaine de Football over Cameroons participation in
the African Cup of Nations (CAN) has declared the two appeals filed by the FFC on 28 January
2019 “On the basis of a failure to reach a decision constituting a denial of justice”. On 11th
February 2019 the FFC filed a second appeal against CAF’s decision of 30th January 2019 not
to suspend Cameroon’s national team for CAN 2019 and to allocate the organisation of CAN
2021 to the Cameroon Football Federation (FECAFOOT)122.

The two arbitration proceedings were joined and submitted to a panel of three CAS arbitrators
which held a hearing with the parties on 29th May 2019 at the CAS headquarter in Lausanne,
Switzerland.

120
John. L ( 2019), The Court of Arbitration for Sport and its Jurisprudence. Asser Press, 1st edition, p.49-51
121
https://www.espn.com lastly visited 16/02/2020 at 1:00pm
122
https://www.bbc.com retrieved 16/02/2020

50
On the basis of the evidence and arguments presented by the parties. The CAS panel concluded
that the appeals were inadmissible. The panel referred to the consistent case law of the CAS
according to which any legal claim must be based on an interest worthy of protection.

The panel concluded that the FFC had no concrete sporting interest. Indeed, according to the
CAF regulations, the panel considered that even in the event of disqualification of the
Cameroon national team, such disqualification will have no impact on the ranking of the FFC
in its qualifying group for the 2019 CAN and it was therefore mathematically impossible for it
to qualify for this competition. The CAS panel also concluded that the FFC had no sufficient
legal interest in requesting that FECAFOOT be suspended by CAF.123

3.2.1.7 Court of Arbitration for Art

CAFA is the Court of Arbitration for Art. A joint initiative of the Netherlands
Arbitration Institute and Authentification in Art led to the founding of CAFA. CAFA is
established to resolve dispute in a wider Art community through mediation and Arbitration. As
such, it offers parties to administrate their arbitration and mediation proceedings with the
assistance of the Secretariat of the Netherland Arbitration Institute.

CAFA was founded in mid 2018 under the auspices of the Foundation Authentication in
Art, based in the Hague and the Foundation Netherlands Arbitration Institute, based in
Rotterdam124.

CAFA’s aim as a not-for profit organisation, is to promote arbitration and mediation and
other lawful means to prevent, reduce and resolve disputes that arises in the wider art
community, this also includes everything related to it or beneficial to it, everything in the
broadest sense of the word.

One interesting feature of the Adjunct Arbitration rules relates to the cross-border nature of
art-related practices and the international bearing of certain works of art in terms of legal
implications typically arising under more than one legal system. Point 13 of the Adjunct
Arbitration rules provide that

123
-Richard H. (2010), Twenty-Five Years Of The Court of Arbitration for Sport; A look in the Rear-View Mirror.
Marquette Sports Law Review, vol 20, issue 2, p.1-3
124
History of CAFA available at: https://www.cafa.world retrieved 17/02/2020 at 2:32pm

51
 “An appropriate choice of law for the arbitral tribunal maybe the
law of the principal location of the seller, if known at the time of
the transaction, or if no sale is involved, of the owner of the
object in question at the time of the commencement of the
arbitration”.125

Point 13 supplements Article 42.2 of the Netherlands Arbitration Institute (NSI) Arbitration
rules which like other commercial Arbitration rules, provides that the tribunal shall apply the
law it considers appropriate in the absence of the party choice. Point 13 appears to be intended
to enhance certainty with respect to factors relevant to the determination of the absence of a
party’s choice. This is an issue of significance in art disputes where it is not uncommon for
controversial to be resolved without the benefit of a choice of provision. Given the lack of
constraint on tribunals under point 13, whether this provision will actually render the arbitration
process more efficient remains to be seen.

3.2.2 Regional Institutions

Regional Institutions are institutions established by countries of a particular region in

the world with the aim of enforcing, promoting or implementing a particular decision arrived at
by the countries of that region. Though there are many regional institutions in the world, this
researcher will concentrate on those created in the African region, particularly those established
to render ADR services. These institutions will be examined below

3.2.2.1 African Mediation and Arbitration Court in Morocco

The African Court of Mediation and Arbitration, CAMAR by its French acronym has
just opened in Marrakech, Morocco. It will intervene to settle disputes involving Africans at the
continental level. The project to set up CAMAR was finalised at a constitutive congress held in
Marrakech on April 5 2019. The court, the first of its kind in the continent, will handle states,
Africans companies and multinational’s operating in this continent. Such disputes were so far

125
Christopher D. ( 2013) CAFA and the Open World of Protein Function Predictions. Vol 29, p.13

52
settled at the level of the arbitration courts of the Hague, Paris or London which generally serve
as a reference in the settlement of disputes on the continent.126

The mission of the New court is to open up new perspectives and a better organised legal
framework in line with international arbitration standards to settle disputes involving African
states; business, among others. This court is also competent for the settlement of multi disputes
related to commercial contracts, Intellectual property, oil and gas contracts engineering,
tourism, and real estate.

The creation of this arbitration institute will help the AU to address the challenges facing the
continent for the implementation of its flagship programs that have the highest impact on
African’s growth. It is up to Africans to position this court as the benchmark jurisdiction for the
continent wide dispute settlement, by passing international courts. Thus, it’s the college of
arbitrators of the continent to require that disputes be referred to CAMAR for a settlement.

The setting of the court is timely, as it will accompany the process of opening up of
Africa’s economies in the framework of the establishment of the African Continental Free
Trade Area (AECFTA) and the single market for air transport in Africa, two projects that will
significantly increase intra-African trade and investment, but also continent wide litters. Note
that in 2016, the Paris-based international chamber of commerce saw a 50% increase in the
number of arbitration involving an African party because of lack of competent institutions on
the continent.127

Several factorsi contribute to African parties looking outside the continent. There is a
relative wariness due to the political and military situations of some countries and also some of
the courts are perceived as being too subject to pressure from member states and does not have
a good reputation and this damages investors confidence.

The new institution therefore, intends to convince the African union that an arbitration clause
will be instituted so that all contentious cases on the continent are automatically referred to
CAMAR. To this end, analyst say the institution must, first prove itself in terms of competence
and neutrality.

126
History of CAMAR available at: http://northafricapost.com accessed 17/02/2020 at 3:51pm
127
Herbert S and Gregory T. (2019) Arbitration Center in Africa; To Many Cooks?, Kluwer Arbitation, pg 3

53
3.2.2.2 Cairo Regional Centre for international Commercial Arbitration

The Cairo Regional Centre for International Commercial Arbitration (CRCICA) was
established in 1979 by an international agreement signed between the Egyptian government and
the Asian African Legal Consultative Organisation (AAICO). CRCICA is an independent non-
profit international organisation enjoying all the privileges and immunities of an international
organisation fully independent from the host State EGYPT. Its provide a dispute settlement for
parties engage in trade, commerce and investment. Its provide case management services and
administers international and domestic arbitration and other ADR mechanisms according to the
CRCICA rules which include both arbitration and mediation. CRCICA also provides
administrative and technical assistance to parties involve in ad hoc arbitration as well as high-
technical hearing rooms for those involve in other institutional proceedings under various rules
such as ICC, ICSID, PCA and CAS rules against or without a fee depending on the
arrangement with the relevant institution.128

In the DOHA129 session of 1978, as well as the exchange of letters between AALCO’s
secretary general and EGYPTIAN minister of justice on the 21st January 1979 establishing
CRCICA and AALCO, expressed its vision on the necessity of establishing institution in Africa
and ASIA, including inter- alia providing a familiar forum for disputes arising from
international transactions related to the two continent through institutions which will apply the
UNCITRAL rules which enhances cooperation between regional and international institutions
and promoting international commercial arbitration in the ASIAN and African regions.

According to AALCO’s exchange of letters, CRCICA adopted the UNCITRAL rules

though with some amendments with the aim of adapting them to institutional arbitration. The
CRCICA rules available in Arabic, English and French has the best practice in the field of
international institutional arbitration. Their amendments in 1998, 2000, 2002, 2007 and 2011
were aimed at meeting the needs of their users. The 2011 amendments in force on the 1st of
March 2011 are based on the new UNCITRAL arbitration rules as revised in 2010, with minor

128
History of CRCICA available at www.crcica.org accessed on 17/02/2020 at 4:23pm
129
DOHA is the Capital of Qatar

54
modifications to adapt CRCICA’s role as an arbitral institution and an appointing authority130.
these amendments modernised the CRCICA rules to promote the efficiency of the arbitral
proceedings through many provisions, introducing a mechanism to form tribunals in multiparty
arbitrations regulating joinder of third parties to the proceedings and adjusting the original
tables of cost to ensure more transparency and flexibility in the determination of the
administrative and arbitrators fees131. In 2017, CRCICA also issued the French version of its
rules in order to accommodate African, Sub Saharan and North African users.

3.2.2.3 Kigali International Arbitration Centre(KIAC)

The Kigali International Arbitration Center is an independent body established in 2011

under the auspices of the Rwanda Private Sector Federation, an organization federating
professional organizations in Rwanda. In April 2008, immediately after the enactment of the
Rwandan law governing arbitration and conciliation in commercial matters, the private sector
federation commissioned a study on the promotion of arbitration and other alternative modes of
resolving commercial disputes. In particular, the study focused on the needs for and efficient
and effective arbitration center to provide the much needed forum for dispute resolution which
the business community (both local and international) prefer over state-run national courts132.
The study recommended a center established by an act of parliament and the project received
support from the government as part of Rwanda’s continuous efforts to improve the investment
climate. It was clear that a credible and well resourced institution owned by the private sector
would complement measures undertaken by the judiciary of Rwanda to improve the
enforcement of contracts and ultimately increase the confidence of investors. law133 (the ‘law’)
establishing the Kigali international arbitration center (the ‘center’) which determined its
organization, function and competence was finally voted on October 2010 and published in the
official gazette134. The law defines the structure of the center with a Governance Board of
Directors ( the ‘BOARD’) comprised of seven members appointed by the Rwanda private

130
Ismail S and Dalia H. ( 2019) Cairo Regional Center for International Commercial Arbitration. Global Arbitration
Review, p.2
131
table 2 and 3 annexed to the rules ibid
132
History of KIAC available at www.kiac.org.rw accessed 17/02/2020 at 8:07pm
133
Law no 51 /2010
134
As Law no 09 bis of 28/02/2011
55
sector federation from professional organizations and international members with knowledge
and practical experience in arbitration.

Over 100 cases have been filed at the Kigali International Arbitration Center since its
inception in 2011. According to the center, the majority of cases are international cases
signaling increased confidence in their quality of arbitration and cases. Dr Fidele Masenge the
executive director of Kigali international arbitration center said that they registered their
hundreds cases at the beginning of the year.135

“We have started 2019 on a high rate by registering the 100th

arbitration case filed since the centers inception, with the total amount in
claim worth more than $50 million” he said.

He continued that the significant increase in its case load annually is testament that users
are increasingly entrusting KIAC with the administration of complete and high level disputes
through arbitration. This is against a trend in arbitration whereby it takes 3-5 years for
arbitration centers to register the first case. KIAC is gradually contributing to the growing
acceptance and use of international arbitration domestically and beyond. It’s also remarkable
that a high percentage of KIAC awards were enforced between 3-6 months and not even one of
these was set aside in the Rwandan courts said Masengo.

Legal and business experts say there is more value in entertaining dispute through
Arbitration as opposed to litigation. While the country is working to improve the business
environment and commercial efficiency, arbitration experts say it is the more popular avenue
through which commercial disputes can be settled. Among other benefits, experts in Rwanda
holds that arbitration guarantees the confidentiality of the disputes at hand as opposed to
litigation where high profile cases receive publicity which could affect the reputation of the
corporations involved. To maintain the momentum, the center says they are building capacity
through training and certification of over 500 professionals in aspects. African Arbitration

135
Collins M. (2019) Kigali Arbitration Center Registers over 100 Cases. The New Times Daily Rwanda, visited
17/02/20

56
Association, which is now legally registered in Rwanda was officially launched last year in
June at the African Development Bank headquarters in Abidjan, Ivory Coast136.

3.2.2.4 Common Court of Justice an Arbitration (CCJA)

The organization for the harmonization of business law in Africa (organization pour l’
harmornisation du droit des affaires en Afrique, OHADA)137, is aim at harmonizing the legal
and judicial systems specifically in the field of business and corporate law of their members
state.

Indeed, most of the laws regulating businesses and corporation in the area dates back to
the colonial period and no longer correspond to the economic situation and contemporary
international relations. Till today, very few legal reforms have taken place. They have been
piecemeal and hardly coordinated between the states of the area. Moreover, lack of financial
resources and insufficient training of judges and courts staff has made the implementation of
such a fragmented legal system unpredictable. The Organization for the Harmonization of
Business Law in Africa aims at restoring confidence to foreign investors and facilitate
economic changes among the members states, with a common and simple law that suits modern
economies and promotes arbitration as a discrete and speedy dispute settlement system in trade
related disputes, improving the training of the judges and court clerks preparing for future
regional economic integration.

To further these goals, OHADA has been endowed with four distinct organs namely;
the Council of Justice and Financial Ministers (CMJS), a Permanent Secretariat (PS), the
Common Court of Justice and Arbitration (CCJA) and the Regional School of Magistracy
(ERSUMA). Our focus here will be on the CCJA.

The CCJA was established in 1998 and made it first decision in 2011. Since April 10
2015, the CCJA has been consisted of 13 judges elected by the Council of Ministers of
OHADA for a term of seven years non-renewable. The treaty of OHADA supplemented by the
rules of the CCJA, organizes the functioning of the court and the status of its judges. The court

136
Bernadette U. (2014) Kigali International Arbitration. World Arbitration Reporter, 2nd edition, pg 1-3
137
OHADA is a regional international organization that groups together 17 African states, mainly
of the francophone area
57
has its headquarters in Abidjan, but can sit at any other place in the territory of one of its
member states. She has already heard public hearings in several member states of OHADA in
recent years.138 As an attempt to exploit the CCJA, we will look at it Arbitral Function, its list
of Arbitrators, Enforcement of it Arbitral Award and Examples of CCJA Cases.

3.2.2.4.1 Arbitral function

The CCJA administers arbitration under its umbrella, including adopting the list of
arbitrators, designating confirming the referees and organization arbitral proceedings without
interfering at the bottom. The CCJA in it exercise for jurisdiction for arbitrations, orders for
enforcement of awards made under its aegis and in case of appeal contesting the validity of an
arbitration award, the court shall sit in full. Any dispute submitted before the CCJA can be
handled by a single arbitrator appointed by the parties if they fail to agree within 30 days from
the notification of request for arbitration by the other party. In an arbitration where three
arbitrators are demanded, both parties are suppose to appoint an arbitrator who will be
confirmed by the court who will proceed by appointing a third arbitrator unless the parties had
provided that the third arbitrator will be chair arbitrator should be jointly appointed by them. In
the latter case, the court will have to confirm the third arbitrator before the proceedings
commence.139 And if the parties did not succeed in appointing a third arbitrator after the time
fixed by them, the tribunal will appoint a third arbitrator. Similarly, if the parties are unable to
appoint arbitrators after a particular time, the court may appoint the entire tribunal.

3.2.2.4.2 List of Arbitrators at the CCJA

In February each year, the CCJA meets in college training to determine the list of
persons to be appointed to its list of arbitrators under its aegis. Nominations are received
throughout the year140. Arbitrators may be selected from the list of arbitrators established by the
court and updated annually. The courts members cannot be on the list. To name the referees in
each given case, the courts take into account the nationality of the parties, the place of
residence of the parties, their counsel and their arbitrators, the languages of the parties, the

138
History of OHADA available at Africa Encyclopedia of Law. Lastly visited on 17/02/2020 at 5:24am
139
Charles M. (2013) Some Reflections on the Prospects for the Harmonisation of International Business Laws in
Africa: OHADA and Beyond. Indiana University Press , vol 59, issue 3, pg 5-6
140
List and Conditions for Appointment of Arbitrators at CCJA available at https://www.ohada.org accessed
17/02/2020 at 5:48

58
nature of the questions and the legislations chosen by the parties to govern their relations. In
other to make the appointments and to establish its list of arbitrators the court may when its
deem its desirable collect the opinions of practitioners of recognize competence in the field of
commercial arbitration. In all cases, the tribunal must be confirmed by the CCJA before the
procedure be validly conducted.

3.2.2.4.3 Enforcement of Arbitral Awards

Once rendered, an award may be voluntarily executed by the losing party. The party
that carries the day may obtain a recognition of the president of the CCJA who will demand
enforcement in all OHADA member countries without further procedures. Currently the
OHADA has initiated a review of the text relating to arbitration (the uniform act on arbitration
and the arbitration rules of the CCJA).141 The revised Arbitration Act imposes strict time limit
on States courts to decide on recognition and enforcement of arbitral awards. Competent State
courts must rule on a request for recognition “within a period that may not exceed 15 days from
its referral”142.

3.2.2.4.4 Examples of Cases Entertained by the CCJA

The CCJA since its creation has received international applause from observers and
international commercial disputants. The courts has unfortunately attracted so many criticisms
in recent years due to its decision in the case of Getma International v Guinea143 in 2011. Its
goods for us to know the basis of the case and the arguments.

In 2011, a French company Getma International commenced arbitration proceedings

against the Guinean state for wrongful termination of a port and railway concession contract.
The proceedings were held under the arbitral rules of the CCJA with a tribunal comprised of
three arbitrators144

In April 2014, the tribunal ruled in favor of Getma, ordering Guinea to pay over £38 million
in damages plus interest. Getma commenced proceedings to enforce the award in the US courts.

141
Roland Z and Clement F. (2018) New OHADA Arbitration Text Enters into Force, Kluwer Arbitration Blog, pg 1
142
Article 31 Ibid
143
Facts of case available at https://hsfnotes.com lastly consulted on 17/02/2020 at 6:46am
144
Professor Ibrahim Fadlalah, Eric Teynier Esq and Juan Antonio Cremades Esq.

59
During this time, Guinea applied to set aside the award before the CCJA Provisions by entering
into the private fee agreement with the parties. In a judgment on 19th November 2015, the
CCJA ruled that the award should be set aside on the grounds that had indeed breached their
mandate by negotiating directly with the parties over their fees in breach of a 2011 court order
issued by the CCJA which limited their fees to 40 million CFA ( approximately £60,000).

The CCJA found that, in entering into this separate fee agreement, they had exceeded its
mandate and deliberately excluded the mandatory provisions of the OHADA arbitration rules
by providing that the parties are bound by the fees set by the CCJA. Article 2(3) of the
OHADA rules on the Resolution of CCJA arbitrations grants the CCJA the authority to fix the
tribunal fees, in accordance with a schedule established by the CCJA Assembly and approved
by the OHADA Councils of Ministers. The schedule is intended to provide parties with a
degree of foreseability as to arbitrator cost and to ensure that the costs are proportional to the
sums in dispute145. However, it is worth noting that Article 24(3) of the OHADA rule also
grants the CCJA the authority to set arbitrator fees at a higher or lower rate than those set out in
the schedule in “exceptional” and “necessary” circumstances. 146

3.2.2.4.5 The Reaction from the Arbitrators

The CCJA decision is yet to be published, but the arbitral members of the tribunal
Getma arbitration on 16 December 2015, published an open letter to the Arbitral Community
publicly criticizing the CCJA decision which it called a “judicial heresy” and calling for their
colleagues support. The tribunal, at that time, criticized the CCJA decision for failing to
recognize the agreement reached between the parties with regards to an increase in the tribunals
fees. It similarly criticized the CCJA for failing to take into account assurances allegedly made
by CCJA representatives, that the tribunal was free to agree a revised fee arrangement with the
parties. Other cases include;

− Societe SADEC SARL- vs -Archeveche de Conkry

− Maître Mohamed SARR- vs -Mamadou Cora Fall
− State of Niger vs Societe Africard Co LTD

145
Kwadwe S. and Joseph O. (2017) Getma v Republic of Guinea Implications for African Arbitration. Oxford
University Press, vol 33, issue 1, pg167-169
146
Maguelonne B. and Herbert S ( 2016) A Set Back For OHADA Arbitrations. Kluwer Arbitration Blog, pg 3

60
 − Sir Eyike Leo Henri Flavien- vs -BICEC S.A147.

3.2.3 National Arbitration Institution

Arbitration has become a dire need in Cameroon for important transactions as it’s the
most convenient means of alternative dispute resolution, due to some bottle necks in our courts.
The flexibility has made economic operators to include it in their contracts as the mode of
regulation of their conflicts.

Cameroon has a modern arbitration system provided by Articles 21-26 of the OHADA
Treaty, the OHADA Uniform Act related to Arbitration and the Arbitration rules before the
Common Court of Justice and Arbitration of March 11 1999148.

Cameroon also has Arbitration Centers which facilitates arbitration procedures and
ensure resolution of dispute. They are basically two in number that is GICAM and the Chamber
of Commerce.

3.2.3.1 Groupement Inter-Patronal du Cameroun (GICAM)

Groupement Inter-Patronal du Cameroon (GICAM) was founded on June 12 1957. It is

known in as the Inter-Patronal Grouping of Cameroon Employers Association. Its governed by
the 1990 law on Freedom of Association in Cameroon149. GICAM brings together professional
groups and individual companies, as such it is currently Cameroon’s largest business group,
having more than 1.000 members. GICAM is the most representative organization of the
private sector in Cameroon and works with the government on major economic issues
including taxation, industrial, and labor regulations, the business environment, accelerated
growth, business competitiveness, professional training, youth employment, infrastructure,
business ethics as well as commercial dispute resolution150.

In other to ensure the resolution of commercial dispute within the framework of

GICAM, the GICAM Arbitration center was established in 2005 to meet the need of quality
dispute resolution as demanded by business men. The GICAM Arbitration Center administers

147
The facts of the cases are available at https://www.ohada.org lastly consulted 17/02/2020 at 7:23am
148
As amended on the 23 November 2017
149
Law No. 90/053 of 19 December 1990
150
My Interview with Mr David Nyamsi, Secretary General of the Arbitration Center at GICAM

61
arbitration procedures according to the OHADA Uniform Act on Arbitration Rules. Among
other things, the center ensures the parties are informed of the arbitration procedure cost.
Within the framework of the 2013151 law laying down incentives for private investment in
Cameroon, there is a provision of amicable dispute settlement. According to Article 26,
investors granted incentives under this law must first seize the control committee in the event
of dispute to seek amicable settlement and where amicable settlement has not been achieved,
they may refer the dispute to an arbitration body recognized by Cameroon. Its present president
is Mr. Celestin Tawamba, heading about 200 member companies and professional unions
combined. This arbitration center is not only useful to Cameroonian commercial disputants, it
is also a reference in the CEMAC region.152

3.2.3.2 Cameroon Chamber of Commerce

Founded in 1927 and 1928, the Cameroon Chamber of Commerce,153 Industry and
Mines is a local organization of businesses and companies in Douala with the intention to
develop and further the interest of local companies and businesses and international operating
companies with offices in Cameroon. Members of the Chambers of commerce are usually
international and local operating companies, such as; lawyers, property developers, tourism
companies, air lines manufacturing companies, import and export businesses, banks finance
companies, legal advisers, IT and electronics manufacturers. The chamber’s main activities are
among others: safeguarding business interests and sharing business experiences and business
interest, contact with governments, civil society, local media and the press and organizing trade
shows and events. The Chamber of Commerce is recently constructing and Arbitration
Mediation and Conciliation Center (CAMC) which will be specialized in settlement of trade
disputes between economic operators.154 It is our believe that this pregnant institution will meet
the standard of GICAM.

3.2.3.3 Conclusion

The array of laws and institutions discussed above are very important to this study
because they constitute the first part of this work which is aimed at exposing the availability of
151
Law No 2013/004 of 18 April 2013 to lay down private investment incentives in the Republic of Cameroon.
152
Facts about GICAM available at https://www.legicam.com retrieved 18/02/2020 at 2:13 pm
153
Cameroon Chamber of commerce, industry and mines in Cameroon/chamber/commerce.net
154
Available at https://www.chamber-commerce.net lastly consulted 18/02/2020 at 3:24pm

62
both laws and institutions regulating and rendering ADR services in Cameroon. Having been
inspired by international norms and institutions, the Cameroon government has ratified the
OHADA on Arbitration and Mediation in a bid to ensure that ADR has a comfortable place in
Cameroon. As if not enough, the government has validated the Arbitration Center created by
GICAM. With the availability of laws and institutions, one really doubts what is preventing the
effective application of ADR in Cameroon. It is certain that the must be challenges and that is
why the next chapter will concentrate in examining the challenges plaguing the implementation
of ADR in Cameroon.

63
 CHAPTER FOUR

THE CHALLENGES OF ADR IN CAMEROON

4.0 Introduction

For many years, litigations have been pending before the different types of courts in
Cameroon. This unnecessary delay has caused the government of Cameroon to incorporate
alternative dispute resolution as a better scheme that can render justice with alacrity. The
existence of ADR has raised so much concern in the minds of scholars as to its degree of
implementation and the possible challenges encountered. Thus, it will be the province of this
chapter to examine the reason for the application of ADR in Cameroon and the possible
challenges.

4.1 Reasons for Incorporating ADR in Cameroon

The Cameroon government has successfully incorporated ADR in Cameroon due to its
ratification of the OHADA on Arbitration and recently Mediation. Below are some of the
reasons for the implementation of ADR despite the existence of an organize judicial system.155
It should be noted in passing that the incorporation of ADR in Cameroon was born from the
assembly of complaints unleashed by commercial disputants.

4.1.1 Delays in Court Proceedings.

The main reason for implementing ADR is to avoid the delay procedure of the judiciary.
Presently, almost all the courts in Cameroon have about 60% of litigations156 still pending
before them. 1 to 3 months can be use to file a case which may take from 5 to 10 years for
award to be delivered. This is the reason most litigants do not get justice in due time and this fit
the saying that justice delayed is justice denied. As a result, many disputants have demanded
for ADR and the government of Cameroon has responded to their demands through the
ratification of the OHADA Uniform Act on Arbitration and Mediation.

155
Law No. 2006/015 of 29 December 2006 with its 2011 amended version.
156
Interview with Barrister Akwo Daniel, Kumba, (13/01/2019).

64
4.1.2 High Rate of Poverty

This researcher holds that a good number of citizens in Cameroon live below the poverty
line. As a results, many victims are unwilling to take the road of the court for justice due to the
high cost of litigation. Distance too is another preventing factor here. Looking at law no 2006
relating to the organization of the judiciary in Cameroon, the law organizes the Court of First
Instance to seat at the Chief Town of every Sub Division and the High Court at the Head Town
of every Division while the Appeal Court seats at the Chief Town of a Region. This
organization posses a great problem of transportation to petty traders residing in the villages
because the poor roads at times makes traveling to be too expensive. Unlike litigation, the
parties and the arbitrator can meet at any venue chosen by the parties157. Thus the government
had to meet with popular demands.

4.1.3 Over Crowding in Courts

The government of Cameroon had to implement ADR in other to get off a huge
backlogging of litigations from the judiciary system. Over crowding of courts is very regular in
Cameroon. This is caused by shortage of magistrates and limited structures inter alia. This
shortage reduces efficacy and delays the birth of justice. Its not strange in Cameroon to see a
judge having about cases 100 at his desk. It is very evasive for him to adjudicate all this cases
within the prescribe period for litigation. This fuel the need for ADR.

4.1.4 To Avoid Corruption From The Judiciary

The incorporation of ADR in Cameroon was fertilized by the alarming rate of corrupt
practices existing in the judiciary158. Many judges were accused of collecting bribe from poor
litigants and many alleged that those who succumb to the financial demands of the magistrates
carried the day159. These corrupt practices left commercial disputants with no option but to
demand for ADR.

157
Article 13 of the Arbitration Rules of the Common Court of Justice and Arbitration. Signed 23 November 2017
158
It should be noted that the 2016 Cameroon Penal Code punishes corruption in its Article 134(1)-(4)
159
Fight Against Corruption: Collective Responsibility. Cameroon Tribune Report by Emmanuel on 05 November
2018 at 12:10. Retrieved 18/02/2020 at 8:00pm

65
4.1.5 Reduction of Economic Interest of Legal Practitioners

Litigation gives much money to legal practitioners especially lawyers who are swelling
their pockets from poor litigants through consultation fee and other charges. Unscrupulous
lawyers will weigh a case and decipher it to be a no case but will proceed by demanding huge
sums of money from the poor litigants because many are very much concerned with the money
and not their client (party) satisfaction after the trial. This unconscientiously nature of lawyers
pushed litigants to demand for ADR.

4.2 Challenges of ADR in Cameroon

It is unarguable that ADR is an effective and efficient means of settling commercial disputes
though fraughted with a lot of challenges. This challenges faced during the implementation of
ADR has acted as a huge barrier to the service of justice renderd to the people. Some of the
challenges will be discussed below.

4.2.1 Shortage of ADR Institutions in Cameron

The effectiveness of ADR has been limited in Cameroon due to the existence of countable
institutions rendering ADR services in the country. For example, there exist just two
institutions away from the courts that render ADR services namely; GICAM and the Chamber
of Commerce which are based in Douala. The existence of just two institutions poses two big
problems; these institutions will grossly be unable to entertain the commercial disputes only in
Douala, talk less of the whole of Cameroon. Another big problem is the issue of transport.
many petty business men will not have the transport fair to travel to Douala to spend some days
in hotels.160 Some business men will not even have the time to travel from one town to another
due to fear of the fact that their absence in the business venue may crumble the company. As a
result, many business men prefer to take their disputes to courts which are situated beside their
nostrils.

4.2.2 Shortage of Trained Judges and Lawyers

The application of ADR is hugely limited in the sense that most of the judges and lawyers
opting to implement ADR are not trained that is, they do not follow the rules of ADR. This

160
From an Interview with some petty traders in Kumba Main Market

66
could account for the so many failures recorded in the attempt of resolving disputes in
Cameroon through ADR. This researcher holds that failure to resolve the Anglophone crises
during the negotiation between the Anglophone lawyers and the government could be partly
because most of the lawyers and representative of the government were not conversant with the
rules of ADR. It should be noted that many attempts to resolve commercial disputes during
motion in chambers by judges and lawyers usually end in deadlock. This failures recorded by
untrained lawyers has discouraged many who desire the process.

4.2.3 Lack of Proper Education for the People

Though there is a high adult literacy rate in Cameroon base at 77.1% in 2019161, many
people are not aware of the existence of ADR in Cameroon. This is the greatest challenge
pointed by Mr David Nyamsi. Secretary General at the Arbitration Center at GICAM during an
interview with the researcher. He holds that lack of information, forums to light the existence
of ADR in the minds of the people is affecting and limiting their efficacy hugely because their
(GICAM) arbitration center wishes to entertain and resolve so many commercial disputes but
the population is ignorant about these easy and amicable settlement mechanisms. We think that
the government is yet to tailor its mind toward this sector by organizing forums or seminars
even in the villages to educate people on the need for ADR.

4.2.4 Minus Impression of Lawyers Regarding ADR

As per this researcher’s opinion, alternative dispute resolution has received a stiff resistance
from many lawyers due to the fact that many of them are already enjoying from the
consultation fee and other charges that must appear in the lamp light when ever litigation is
mentioned. For example, consultation fee varies in the city of Kumba due to the education and
experience of the lawyer as well as the structure of his chamber. So while some lawyers collect
50.000frs which is the base some extend to 500.000frs. As if that is not enough, some chambers
ligation fee does not go below a million francs. What is interesting is that some litigants are
always prepared to pay this colossal amounts which do not correspond with the financial status
of most litigants. On the contrary, ADR has just a single fee that is decided more often than not
by the parties in negotiation and mediation except for institutional arbitration were the parties

161
Adult literacy rate in Cameroon available at https://koema.com lastly visited on 18/02/2020 at 9:11pm

67
are required to pay a sum fixed by the institution. At a critical look, this researcher submits that
a lawyer has more to gain financially in ligation than ADR. Due to this awareness, many
lawyers have been lackadaisical about the whole ADR process. And this has made the
penetration of ADR difficult in Cameroon because those who are to preach and implement it
are reluctant.162

4.2.5 Non Application of ADR in Certain Cases for Optional Reasons

The application of ADR in Cameroon is limited in the sense that it is applied only to
commercial and family disputes that is concentrated on civil issues. The province of ADR in
Cameroon does not apply to all civil disputes for example; ADR can not apply to land dispute
in Cameron. It is also disturbing to say that ADR in Cameroon cannot be applied in criminal
cases whereas other countries like Ghana, South Africa and Senegal do apply it in criminal
matters163. Thus it is a great challenge for ADR in Cameroon as it remains the wish of many
Cameroonians to see ADR being extended to criminal matters. It should be noted that ADR can
be applied in minor criminal cases through negotiation between the accused and the state
prosecutor before trial.

4.2.6 Absence of a Statutory Code for ADR

The absence of a national law regulating the process of ADR inspired by the OHADA Treaty
has been of great consequence to the implementation of ADR in Cameroon. This is because the
OHADA on arbitration is vague in so many instances for example; the OHADA does not
provide the fee to be collected by a mediator and arbitrator. Thus parties are left under the
mercy of some unscrupulous, negotiators, mediators and arbitrators who may demand
exorbitant sums for the process. This researcher holds that some private mediators and
arbitrators are becoming more expensive than the courts especially in the city of Yaoundé as
per this researcher’s opinion.

162
Its to note anonymously that some Chambers in Yaounde do not descend below 500000frs as Consultation
Fee
163
Arnold I. (2011) ADR in Business: Practice and Issues Across Countries and Cultures. Kluwer Law International ,
vol 2, pp.611-624

68
4.2.7 Lack of Separate Mediation Court

Lack of a separate mediation court has reduced the effectiveness of ADR as mediation is
done in Cameroon informally though the OHADA on Mediation has provisions for Institutional
Mediation164. Till now it is unimaginable that there is no mediation center in Cameroon with an
official structure and selected mediators who are always ready to mediate commercial dispute.
The absence of such an institution has caused many to go back to litigation because some
private mediators are not trust worthy.

4.2.8 Conclusion

From the above analysis, it is undeniable that ADR in Cameroon has suffered abundant
loopholes at the sector of implementation. These loopholes could be summarized, into shortage
of ADR institutions, shortage of trained lawyers and judges, lack of proper education for the
people, minus impressions of lawyers regarding ADR, Non application of ADR in certain
cases, absence of a separate code for ADR system and lack of a separate mediation court.
Though the challenges seems enormous, it is the hope of the business population that ADR will
take another turn in the sector of implementation because the issue is not paucity of laws albeit
implementation.

164
Article 3 ibid

69
 CONCLUSSION AND RECOMMENDATIONS

GENERAL CONCLUSION

For the country Cameroon to effectively achieve economic development, it requires a vibrant
economy where economic activities are booming. A vibrant economy is a necessary road that
can lead the country towards emergence in 2035165. For the economy to be vibrant, commercial
activities need to stay alive. Though the government has engaged in many investment
agreements to ensure that investors take the road to Cameroon, the lack of an imparial and
confortable means of intertaining disputes is busy sending away the potential investors. Thus it
is the concern of many that these investors disappear within a tickle of an eye. The most
disturbing issue is that the disappearance leaves many unemployed since most of the glaring
companies are owned by them. To combat this challenge, the government did not face any
difficulty in incorporating the desired ADR mechanism, since she is a member of the OHADA
which has made provisions for such a system with concentration on arbitration and mediation.
With the consideration of the availability of ADR laws and institutions in Cameroon, the
question that has preoccupied the minds of many has been the length of application and the
challenges affecting the effective implementation of ADR in Cameroon.

The indicated challenges consist of shortage of ADR institutions, shortage of trained judges and
lawyers and the lack of proper education for the people. T is good to say that the major ADR
institution by name GICAM is putting more efforts to combat these challenges. But we think
that the government should champion the fight by applying the recommendations provided
below. For it is our humble believe that if implemented, ADR will be a household atticle in
Cameroon.

165
Paul Biya (2018) End of Year Speech,

70
 RECOMMENDATIONS

Recommendations are suggestions provide with the aim of solving a particular problem. So
it is the researchers believe that if this recommendations provided below are implemented,
commercial disputants will be satisfied and it will reduce a number of complains. Again, it will
reduce the work loads of our courts.

The challenges or barriers plaguing the effective implementation of ADR can be ejected if
some salient and serious measures are selected and implemented by the government of
Cameroon. To execute the aims of ADR, certain recommendations should be considered. Thus
the relevance of this section is to provide some recommendations.

➢ More Institutional Frameworks Should be Established

It is this researcher’s humble opinion that the problem of implementing ADR could be
solved through the creation of many more institutions providing ADR services, that is the
government should create conciliation, mediation and arbitration institutions. It is common
knowledge that as of now, Cameroon can be proud of only GICAM which renders arbitration
services. It is my humble advice that the organization of the judiciary should be emulated that
is; ADR centers should be established from Sub Divisional levels to Regional levels in other
not to distant justice from the people.

➢ A Separate Code Should Be Enacted Regarding ADR

One of the challenges encountered in the implementation of ADR stems from the fact that the
inspirational law or guiding law for ADR baptized OHADA is limited vague in many instances.
For example, it does not state the fees to be collected by a conciliator, mediator and arbitrator.
this silence has caused ADR practitioners to charge exorbitant fees which are some times more
than litigation fees. This has scared away many admirers of the process. Thus it is my humble
suggestion that the government should enact a separate code which will be aimed at
supplementing the provisions of OHADA. This code should clearly indicates the qualifications
of a mediator or arbitrator and their fee.

71
 ➢ The Judges And Lawyers Should Be Properly Trained

For there to be effective application of ADR in Cameroon, we suggest that the government
should create a separate institution to train judges and lawyers on the rules of OHADA and the
necessity of resolving disputes amicably. Alternatively, the government could still create a
separate section in ENAM under the judiciary to train magistrates on the application of ADR.
Again, the government could still establish forums or seminars just to train these legal
practitioners on the application of ADR166.

➢ Public Awareness Should Be Increased

Lack of awareness of the existence of ADR by the public was cited by Mr. David Nyamsi as
the greatest challenge affecting the application of ADR in Cameroon. This challenge could be
combated through the involvement of NGO’s in the organization of seminars in local areas like
the villages to drilled villagers on the necessity of entertaining their commercial and family
disputes through ADR. Massive sensitization of business men even in market areas. As an
example, NGO’S or the government could launch a program aimed at sensitizing the business
people even in Mokolo market in Yaounde since many of them are ignorant of this beautiful
process. Sensitization should be extended even to Secondary Schools because it is at that stage
that many business ideas are conceived. So the aforementioned parties should ensure that as the
students commence conceiving business ideas, disputes resolution ideas should be injected in
their minds as well.

➢ Positive Impression Should be Increased Among the Lawyers And Judges

Concerning ADR

It is our loyal and sincere submission that lawyers should be advised on the need to do
justice than hunt for money because if this impression is not there, lawyers will never give a
serious consideration to ADR since litigation gives money more than ADR. Judges on their
parts need to know that ADR practitioners are in no way crossing over their territory because
this is the notion many judges have that ADR Centers are crossing their territory. This notion
has breaded conflicts between ADR practitioners and some magistrates because some of this
judges use the biased mind to deny execution of an arbitral award. So we highly advised the

166
This constitute part of the job of the arbitration center at GICAM

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BAR Council and the Ministry of Justice to create this positive notion between these lawyers
and judges.

➢ ADR Should be Applied In Certain Criminal Cases

The application of ADR in Cameroon has been hotly criticized due to its limitation in civil
matters. As seen in other countries, many hold that ADR has traveled beyond civil cases and it
is occupying a nitch for itself in criminal cases. This inapplicability of ADR in Cameron in
minor criminal cases like those having the punishment inscribe under section 21(1)(c) of the
Penal Code of Cameroon167 has caused a fat problem among admirers of the ADR process.
Thus we recommend that the government should create a space for ADR in the criminal
procedure code168.

➢ A Statutory Body Should Be Created For Formulating Rules, Planning And

Monitoring The Whole ADR System.

This researcher greatly propose that the government create through the parliament or a
presidential decree an institution that will be in charge of supervising the function of ADR
practitioners in the various centers in a bid to ensure that they respect the rules of OHADAii and
that arbitral awards are enforced by the courts.

167
Law No. 2016/007 of 12 July 2016
168
Sunjita I.(2019) The Effectiveness of Alternative Dispute Resolution in Bangladesh: A Critical Analysis.
International Journal of Multidisciplinary Research and Development, vol 6, issue 3, pg 108-109

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18

Rough work
1
Preamble of the Constitution of Cameroon. Law number 2008/001 of 14 April 2008 amending
and supplementing some provisions of law number 96/6 of 18 January 1996 which amended
the Constitution of 2 June 1992

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77