Ohadata D-07-40

ASSESSMENT OF THE EFFECTIVITY OF OHADA REFORMS

IS OHADA A RELEVANT MODEL FOR ASEAN (ASSOCIATION OF
SOUTHEAST ASIAN NATIONS)?
EVALUATION DE L’EFFECTIVITE DES REFORMES DE L’OHADA.
L’OHADA. L’OHADA EST-IL UN MODELE PERTINENT POU R L’ANASE (ASSOCIATION DES
NATIONS DE L’ASIE DU SUD EST) ?
Par EMMANUELLE DUDICOURT
ST105577
5th November 2007

Legal Reforms and Issues of International Business (SM80.9001)

Dr. Roland Amoussou-Guenou

Asian Institute of Technology

School of Management

Table of Content
Introduction

1. What is OHADA? --------------------------------------------------------------p.3

OHADA History ------------------------------------------------------------------------------p.3
OHADA Institutions -------------------------------------------------------------------------p.6
OHADA legislation -------------------------------------------------------------------------p.10
OHADA Arbitration system --------------------------------------------------------------p.13

2. Assessment of the effectivity of OHADA reforms ----------------------p.15

Successes --------------------------------------------------------------------------------------p.15
Areas where improvement is still needed ----------------------------------------------p.16
Current and future challenges -----------------------------------------------------------p.17

3. Is OHADA a relevant model for ASEAN countries?

Why is it not a relevant model now? ----------------------------------------------------p.19
Why could it become a relevant model in the future? -------------------------------p.20

Bibliography

Appendix : Treaty on the Harmonization of Business Law in Africa

2
Introduction

This paper intends to discuss the effectivity of the work of the Organization for the
harmonization of business law in Africa, better known as OHADA, and the relevance and
attractiveness of its model for the Association of Southeast Asian Nations (ASEAN).

OHADA was formed on October 17, 1993 by 14 African countries1, all members of the franc
zone2, who were “determined to accomplish new progress on the road to African unity and to
establish a feeling of trust in favour of the economies of the Contracting States in a view to
create a new centre of development in Africa3”.
It aimed at providing its Member States with “a single, modern, flexible, and reliable business
law, adapted to each country’s economy”, “arbitration as an appropriate way to settle
disputes” and “an opportunity for training judges and judiciary staff”4.
More than ten years after the launch of this ambitious project, it is now possible to produce a
first assessment of the effectivity of OHADA business law and arbitration reforms.

Created in 1967 during the cold-war period by 5 Southeast Asian countries5, ASEAN is a very
different entity. It is primarily a geopolitical and economic association of States, which goal
was not to develop law harmonization but to accelerate economic growth, social progress,
cultural development and promote regional peace among its members. The comparison
between the two models is therefore not evident.

The first and the second part of this paper will be dedicated to the description of OHADA’s
activities (I) and the assessment of its reforms’ effectivity (II) , whereas the third part (III) will
focus on the relevance of the OHADA model for the ASEAN entity.

1
Benin, Burkina Faso, Cameroon, Central Africa, Chad, Comoros, Congo, Equatorial Guinea, Ivory Coast,
Gabon, Mali, Niger, Senegal, Togo
2
The Franc zone is made up of 15 African countries, who all use the franc CFA. It results from the
transformation of the former French colonial empire.
3
Cf. Preamble of the Treaty on the harmonization of business law in Africa
4
Cf. OHADA presentation in www.ohada.com
5
Indonesia, Malaysia, Philippines, Singapore, Thailand

3
 1. What is OHADA?

1.1 OHADA History

OHADA creation
In the late 1980’s, it became clear for many African politicians that the situation of legal and
judicial uncertainty existing in most African countries put a curb on the development of the
continent and that law modernization and harmonization was therefore necessary. This
concern was first expressed by the Ministers of Finance of the Franc zone, who decided in
1991 to appoint a panel of experts to work on this issue. At a very early stage, the experts
realized that harmonizing the business law within the Franc zone would have tremendous
consequences and enable its Member States to attract foreign investment.
Until the creation of OHADA, many of the laws in the Member States were out-to-date and
huge disparities existed between the countries. Some of them like Senegal had undertaken the
modernization of their legislation, whereas others like Chad or Niger were still applying the
French “Code Napoléon” from 1807 and/or French laws on “société anonymes” and “sociétés
à responsabilité limitée” from the beginning of the 20th century. Investment in these countries
was complicated because of these disparities and the lack of relevant published laws in some
areas. Further issues such as the problems of cross-border resources exploitation and of
landlocked countries needed also to be addressed.
The creation of OHADA in October 1993 by the Treaty on the harmonization of business law
in Africa was a consequence of these findings. In the Article 1 of the Treaty, the founding
members state that “The objective of the present Treaty is the harmonisation of business laws
in the Contracting States by the elaboration and adoption of simple modern common rules
adapted to their economies, by setting up appropriate judicial procedures, and by encouraging
arbitration for the settlement of contractual disputes”6
Two main institutions, the Council of Minister and the Common Court of Justice and
Arbitration, were created in order to implement “the realisation of the tasks planned”7 by the
Treaty.

Membership’s history
6
Source : Treaty on the harmonization of business law in Africa in www.ohada.com
7
Cf. Article 3 Treaty

4
OHADA was created by the Member States of the franc zone, who were all, with the
exception of Equatorial Guinea and some provinces of Cameroon, French-speaking. However,
pursuant to Article 53 of the OHADA Treaty, the membership was from the start open to any
Member State of the former African Union. Since Guinea (March 2000) and Bissau Guinea
joined the organization, the uniform OHADA business law is applicable in 16 African States8
and the Democratic Republic of Congo is currently proceeding with the adhesion process.
OHADA’s membership is becoming less and less uniform. Even if French remains the official
language of the organization, OHADA is now a quadrilingual zone : Spanish and Portuguese
are spoken, respectively in Equatorial Guinea and Guinea-Bissau and English in some parts of
Cameroon. The organisation is no longer a Franc zone since Guinea joined in 2000, and
common law countries such as Ghana are now considering becoming members. All the
current Member States have a civil law tradition except for the English-speaking provinces of
Cameroon.

OHADA Member States

8
Benin, Burkina Faso, Cameroon, Central Africa, Comoros, Congo, Ivory Coast, Gabon, Bissau Guinea,
Equatorial Guinea, Mali, Niger, Senegal, Chad, Togo

5
 OHADA Institutions
An international Organisation…
Created by a treaty, OHADA is a public international organization with full international
judicial personality, which means that its rights and obligations are distinct from those of its
Member States.
Pursuant to Article 46 of the Treaty, OHADA has the capacity “to contract; to acquire
furniture and real estate and to transfer them; and to initiate legal proceedings and to be a
party in litigation’s”.
To ensure the proper functioning of the entity and the independence of OHADA employees,
the organization enjoys privileges and immunities with regard to its assets and employees9.
Furthermore the host country, Cameroon, guarantees the inviolability of OHADA premises as
well as its privileges of jurisdiction which allow it not to be sued before the domestic courts of
Cameroon.

… With 4 main Institutions

Pursuant to Article 3 of the Treaty, 4 institutions enable OHADA to perform its current
activities. The Council of Minister and the Common Court of Justice and Arbitration can be
considered as the 2 main bodies of the organization. The Council of Ministers is assisted by
the Permanent Secretariat to which is attached the Regional Training School of the Judiciary
(ERSUMA).
The president of the Council of Ministers, the President of the CCJA, the Permanent Secretary
and the Managing Director of ERSUMA form the management team of the organisation.

The Council of Ministers

The Council of Ministers is OHADA supreme decision-making body. Pursuant to Article 27
of the Treaty, the Council consists “of the Ministers responsible for Justice and (the )Ministers
responsible for Finance”. The Chair of the Council rotates every year between the Member
States following the alphabetical order. Pursuant to Article 28, the Council of Ministers meets
“at least once a year upon notification from the Chairman”. All decisions are “reached by an
overall majority of the Contracting States present and voting” (Article 30).
The Council of Ministers has both administrative and legislative functions.
Its administrative functions relate mainly to budgeting and nominations. It decides the amount
of annual contributions payable by the Member States, adopts the budget of the institutions,

9
Articles 47 to 49 of the Treaty

6
appoints the auditors to certify the accounts of the institutions and approves the accounts. It
also manages the organization, operation, resources and services of ERSUMA and appoints
the Permanent Secretary and the Director General of ERSUMA and
The Council is entitled to request advisory opinions from the CCJA on any pertaining to the
Uniform Acts, or the interpretation and implementation of of the Treaty and the regulations
issued for its implementation.
Regarding its legislative functions, the Council of Ministers is in charge of the approval of the
annual programmes for the harmonization of business law, and for the adoption of the
Uniform Acts

The Permanent Secretariat

Based in Yaoundé (Cameroon), the Permanent Secretariat is the permanent body of OHADA.
It is headed by a permanent Secretary “appointed by the Council of Ministers for a four year
term of office, renewable once” (Article 40). He appoints “his staffs in compliance with the
recruitment conditions laid down by the Council of Ministers” (Article 40).
The Permanent Secretariat and is in charge of various administrative functions. It proposes the
agenda for the meetings of the Council of Ministers and the annual programme for the
harmonization of business law. It prepares and finalizes the drafting of Uniform Acts, presents
them to the Member States for consideration, request the opinion of the CCJA before they are
adopted, proposes their inclusion on the agenda for the meeting of the Council of Ministers
and is responsible for their publication in the OHADA Official Journal.
The Permanent Secretariat also prepares the CCJA elections and manages the Regional
Training Centre for Legal Officers (ERSUMA).

The Common Court of Justice and Arbitration (CCJA)

The CCJA is the cornerstone of the OHADA system. It is a very innovative institution which
has both judicial and arbitral functions (only the judicial functions will be discussed here).
The functions of this permanent institution, based in Abidjan (Ivory Coast), are provided for
in Articles 31 to 39 of the Treaty. They are regulated by the Rules of Procedure adopted by
the Council of Ministers at N’Djaména (Chad) on 18 April 1996 and by the Rules of
Arbitration adopted in Ouagadougou (Burkina Faso) on 11 March 1999.
Pursuant to Article 31 and 32 of the Treaty, the CCJA comprises seven judges elected by
secret ballot by the Council of Ministers for a term of seven years renewable only once. The
President of the CCJA and the two Vice-Presidents are elected by the Court “for a duration of

7
three and a half year non renewable” (Article 37). The judges are meant to be independent,
the Treaty guarantees therefore their security of tenure (Article 36) and provide them with
diplomatic privileges and immunities for the duration of their term of office.
The CCJA has a registry which plays an administrative and secretarial role, and assists the
CCJA in performing its functions. It is headed by a Chief Registrar who is appointed by the
President of the CCJA for a period of seven years, renewable once.
In its judicial capacity, the CCJA plays the role of a supranational court, which purpose is to
avoid the risk of conflicting interpretations of the Uniform acts by the supreme courts of the
Member States and to achieve a uniform judicial interpretation of the Treaty and the Uniform
Acts. It has both advisory and contentious jurisdictions.

Advisory jurisdiction
The Treaty describes 3 cases in which the CCJA is requested to give advisory opinions:
- On draft Uniform Acts before their submission to the Council of Minister for adoption
(Article 7)
- To any Member State or the Council of Ministers on any question relating to “the
interpretation and enforcement of the (…) Treaty, on [the] Regulations (…) laid down
for their application, and on the Uniform Acts” (Article 14)
- On any national court hearing as case relating to the application of OHADA
legislation and its interpretation (Article 14)
It should be noticed that the opinions and interpretations given by the CCJA are not binding
but that they are, in practice, rarely disregarded.

Contentious jurisdiction
According to Articles 13 and 14 of the Treaty, the CCJA has always jurisdiction when there is
a dispute relating to OHADA law, but only at the highest appellate level.
The Treaty describes 3 situations allowing a referral to the CCJA:
- Directly by a party who wishes to appeal a decision of a national court of appeal on
the merits of any matter relating to application of the Uniform Acts (art 14)
- Directly by a party who wishes to challenge the jurisdiction of a national supreme
court if it has already unsuccessfully argued before that the CCJA has jurisdiction (art
18)

8
 - By a supreme court of a Member State which considers that it does not have
jurisdiction to hear the case in question, because it involves issues relating to
application of a Uniform Act.
Unlike the advisory opinions, the judgments of the CCJA are “final and conclusive.” The
Article 20 of the Treaty specifies that “Execution and enforcement shall be ensured by the
Contracting States on their respective territories” and that “in no case”, “a decision contrary to
a judgment of the Common Court of Justice and Arbitration” may “be lawfully executed in a
territory of a Contracting State”.

The Regional Training Centre for Legal Officers (ERSUMA)

Based in Porto Novo (Benin), ERSUMA aims at improving the legal environment in the
Member States by “contributing to the training” (Article 42) of the judges and legal officers in
OHADA law. The Training Centre is administered by a Board of Directors, an Academic
Council and a management team headed by a Director General, who is appointed by the
Council of Ministers.

Member States

Council of Ministers
Common Court of Justice and
Arbitration
(Ivory Coast)

Permanent Secretariat
(Cameroon)

OHADA Uniform
Regional Actsof the Judiciary
Training School
(Benin)

9
 OHADA legislation : the Uniform Acts

What is an Uniform Act ?

Pursuant to Article 5, Uniform Acts are “acts enacted for the adoption of common rules as
provided for in Article 1 of the present Treaty”. They are prepared “by the Permanent
Secretary Office in consultation with the Governments of Contracting States” and are
“debated and adopted by the Council of Ministers on consultation” with the CCJA (Article 6).
Their adoption require “unanimous approval of the representatives of the Contracting States”
(Article 8).
One of the most innovative feature of the OHADA system is that its legislation or Uniform
Acts are “directly applicable and overriding” (Article 10) in all OHADA Member States, and
will apply automatically in any State that joins the organization in the future, 60 days after
accession.

Uniform Acts regulating business law

( All the following descriptions of the Uniform Acts (in italics and in brackets), except for the
Uniform Act on arbitration law, are extracted from the presentation booklet on OHADA
produced by UNIDROIT (www.ohada.com))

Six Uniforms Acts pertaining to business law have been so far adopted by the Council of
Ministers.

General Commercial Law (date of entry into force : January 1, 1998)
“Businesses (individuals or business corporations) have to be in full compliance with the new
regulations since January 1, 2000, especially with regard to the following:
- merchants’ status: definition, general rules, and accounting standards.
- the Register of Commerce and Personal Property Transactions (RCCM): in each
Member State,
The competent court holds a register which is a tool for collecting registration entries from
natural and legal persons, together with amendments relating to such entries. The Register is
also a record of guarantees given by traders on movable property together with retention of
title clauses and leasing agreements.
The clerck of the competent sales jurisdiction keeps the RCCM above mentioned which is
extended by a national file; a regional file is also kept at the Common Court of Justice and
Arbitration.
- commercial leases and goodwills.
- business intermediaries: brokers, sales representatives...
- sales and mercantile law. »

10

Company & Economic Interest Group (EIG) law (date of entry into force : January 1, 1998)
“The uniform Act provides the operating rules for commercial companies and economic
interest groups. It constitutes the commercial corporate law for all Member States since
January 1, 2000.
The first part of this Uniform Act covers relevant issues, from the formation and the
functioning of the company to the various types of commercial companies: partnership,
limited partnership, limited liability company, corporation, joint venture, de facto partnership
and EIG...
Any subsidiary owned by a foreigner, has to be attached to a national company no later than
2 years after the subsidiary is set up, unless this obligation is waived by a specific national
decision.
A commercial company may be a sole proprietorship.
The civil liability of managers is clearly defined”.

Law concerning secured transactions (collateral and guarantees) (date of entry into force :
January 1, 1998)
“The uniform Act lays down the different types of guarantees available to creditors to
reinforce their rights on their debtors. It deals with the following:
• Classification of collaterals,
• Personal guarantees,
• Securities on movables,
• Mortgages and leases. »

Debt recovery and enforcement law (date of entry into force : July 10, 1998)
“The uniform Act sets out the legal proceedings that the creditor can rely upon to force his
debtor to meet his commitments : payment of a sum of money, obligation to deliver a good or
to hand it back...
The text deals with the simplified debt recovery and seizure of property (distraint)
proceedings; it institutes quick, inexpensive and efficient methods of debt collection such as
the injunction to pay (writ of execution issued by the judge against the debtor, in favor of the
creditor) and the restitution procedure, which will be a strong protection for the unpaid
creditor.”

Bankruptcy law (date of entry into force : January 1, 1999)

“The uniform Act relating to bankruptcy and insolvency law :
- sets out rules for the prevention of difficulties,
- gives preference to the protection of sustainable businesses,
- organizes a preventive settlement procedure for the businesses corporations which
can be salvaged,
- lays down a judicial recovery procedure in the case of insolvent debtors,
- sets out rules with regard to corporate managers’ responsabilities and obligations.”

Arbitration (date of entry into force : June 11, 1999) (see 1.4)

11

Accounting law
o for consolidated accounts (date of entry into force : January 1, 2001)
o for combined accounts (date of entry into force : January 1, 2002)
“This uniform Act relates to business accounting principles and standards; it includes the
OHADA specific accounting system: sets of accounts, financial statements, consolidated
accounts and encompasses all the regulations pertaining to financial and accounting
information and reporting.”

Law regulating the contracts for the carriage of goods by road (date of entry into force :
January 1, 2004)
“This uniform Act applies to all contracts for the carriage of goods by road when the
merchandise pick-up and delivery points, as shown in the contract, are located in an OHADA
Member State or in two States where at least one of them is an OHADA Member State. The
following are excluded from the field of application ot this uniform Act: the transportation of
dangerous goods, funeral transportation, removal transportation and transportation of goods
carried out under the terms of international postal agreements. The uniform Act is applicable
irrespective of the domicile and nationality of the parties to the transportation contract.”

12
 OHADA Arbitration’s system
(All the quotes are extracted from the book “Business Law in Africa - OHADA and the harmonization Process)

The introduction of an arbitration’s system is indisputably one of the most important

innovations brought by OHADA since “Until 1999 very few of the OHADA Member States
had legislation specifically relating to arbitration, and not all of those that did had modern
legislation on the subject”.
Arbitration can be defined as an alternative way of dispute resolution, which “allows parties
to have their dispute settled by a private tribunal consisting of a sole arbitrator or a panel of
arbitrators, who may be chosen by the parties concerned”. Its main advantages are the
confidentiality and the rapidity of its proceedings, which result in a “final and binding arbitral
award, which is subject only to limited appeals”.
This part will discuss the originality of the OHADA arbitration model.

Main attribute of the OHADA arbitration model : a dual system of arbitration

“OHADA has created two different sets of legislation applicable to arbitration, the OHADA
Treaty, which provides for institutional arbitration under the auspices of the CCJA and the
Uniform Act on Arbitration, which is the common arbitration law of the 16 Member States”.
The basic rules laid down by the Uniform Act are “applicable to any arbitration where the
seat of the arbitral tribunal is one of the Member States, or which might also be chosen by the
parties as the applicable procedural law even if the seat of the tribunal is not in a Member
State”.

Main innovation of the OHADA arbitration model : a large scope of application

- No distinction between domestic and international arbitration

“Any ad hoc arbitration taking place in a Member State will be governed by the Uniform Act
and by any other arrangements as may be agreed between the parties, to the extent that such
arrangements are permissible under the Uniform Act. If institutional arbitration has been
provided for and the seat of the tribunal is in an Member State, the Uniform Act will still
apply, but only to complement the institutional rules that the parties have chosen.”

- No distinction between civil and commercial arbitration

“Article 2 provides that arbitration may be resorted to with respect to any rights that may
freely disposed of. This means, in practical terms, that any dispute may be submitted to
arbitration on condition that it does not relate to rights where intervention of the public
authorities is required.”

- Arbitration open to public authorities and bodies

“Article 2 also provides that both individuals and corporate bodies may submit to arbitration,
and lays down the principle that States and other territorial public authorities mayalso submit
to arbitration. It adds that such entities may not rely upon their own national laws to argue
either that the dispute is not arbitrable, that they did not have the capacity to enter into the
arbitration agreement, or that the arbitration agreement is invalid.”

13
Main features of the dual arbitration system

Uniform Act CCJA

1. Scope Seat of arbitration in Member Party resident in member
State State or contract performed
in member State
2. Tribunal 1 or 3 arbitrators 1 or 3 arbitrators
Appointment by local court if Appointment by CCJA if
necessary necessary
No provision for multi-party Provision for multi-party
arbitration arbitration
Challenge before local Court Challenge before CCJA
3. Proceedings Procedural rules chosen by CCJA rules
parties or tribunal - Request for
arbitration
- Answer and, if
applicable,
counterclaim within
45 days
- Response to
counterclaim, if
applicable, within 30
days
- Meeting of tribunal
and parties within 60
days
- Minutes
- Further proceedings
as may be determined
- Hearing and closure

4. Provisional or May be ordered by national May be ordered by tribunal;

conservatory measures court enforcement order by CCJA
if necessary
May be exceptionally
ordered by national court
5. Time limit for issuance of Six months from 90 days from closure of
award appointment of last proceedings, extension
arbitrator, extension possible possible
6. Costs As may be determined by According to CCJA scale of
tribunal costs
7. Appeals No ordinary appeal No ordinary appeal
Setting-aside proceedings Setting-aside proceedings
before national court before CCJA
Ultimate appeal before CCJA No further right of appeal
8. Enforcement Enforcement order from Enforcement order from
national court CCJA, enforceable in all
Member States
Source : “Business Law in Africa – OHADA and the Harmonization Process” Eversheds. P 208.

14
 2. Assessment of OHADA reforms

It is indisputable that OHADA has already made, and is continuing to make, a considerable
contribution to the updating of its Member States’ legal systems and to the creation of a
secure legal environment for investors. These achievements result from the will of the
Member States to create and update a “truly African System of law”10.
However, a lot still needs to be done and, as shown by the 2008 World Bank report on “doing
business”11. Most of OHADA countries are still regarded as countries where it is difficult to
do business. Unfortunately, the creation of a new harmonized law does not prevent the
domestic judicial institutions from being inefficient and/or corrupt.
This part will discuss the successes of the OHADA system as well as the difficulties and the
challenges that the Organization is currently facing.
(Most of the information given in this part comes from the assessments and analysis produced
at the time of the 10th anniversary of the creation of the organization in 2003-2004.)

2.1 Successes

Implementation of the Treaty in a short period of time

The implementation of the Treaty in such a short period of time is a big success. Furthermore,
the increasing activity of some OHADA institutions is an obvious sign of vitality. The
constant increase since the late 1990’s of the CCJA judicial case-load (from 1 case filed in
1998 to 26 in 2001) and the training provided by ERSUMA to 1322 professionals between
1999 and April 2004, reflect the constant development of the Organization.

Creation of a body of uniform law applicable in the OHADA 16 Member States

An abundant legislation has been issued in a very short period of time. Ten years after the
creation of the Organization, 8 Uniform Acts, which represent 2290 articles, have already
been drafted.

New adhesions

10
Source : “Business Law in Africa – OHADA and the Harmonization Process”
11
Source : http://rru.worldbank.org/businessplanet/

15
The adhesions of Guinea and Bissau-Guinea, the coming adhesion of the Democratic
Republic of Congo as well as the interest expressed by other countries show the attractiveness
of OHADA among African States.

2.2 Areas where improvement is still needed

Problems in the functioning the Organization

Language issue
Pursuant to Article 42 of the Treaty, the working language of the organization is French. This
is a problem for the non French-speaking Member States like Equatorial Guinea (Spanish-
speaking), Guinea-Bissau (Portuguese-speaking) and the English-speaking provinces of
Cameroon as the OHADA legal documents are not translated in these 3 languages and all
proceedings at the CCJA are conducted in French. The language issue has raised a
constitutional problem in Cameroon where the principle of bilingualism is enshrined in the
country’s constitution. The imposition of French as the only official language of the Uniform
Acts has therefore be considered as unconstitutional and has led to serious resistance to the
Uniform Acts in the English-speaking provinces of Cameroon, which in addition have a
common law tradition.

Funding and understaffing issues

The work of OHADA institutions has been hampered since its inception by the fact that its
budget for its days-to-days running was not always sufficient to allow for the required level of
staffing. Some Member States have failed to pay their annual contributions in the last years
and the growth fund of 12 billions CFA francs, managed by the United Nations Development
Programme (UNDP), has not proved sufficient the ensure the organization’s autonomy. The
OHADA budget still heavily depends on the contributions of foreign countries such as France
, the United Kingdom and Canada and of international Organizations such as the European
Union or the UNDP. Nearly 76% of the funding planned on the period 1998-2010 came from
external stakeholders.

Problems in the implementation of the Uniform Acts by the Member States

Existence of national disparities in the implementation of the Uniform Acts

16
The Uniforms Acts have not been uniformly implemented in the Member States. As
mentioned earlier, the English common law provinces of Cameroon have shown some
resistance to OHADA law. The provision relating to the direct applicability and enforceability
of Uniform Acts without parliamentary intervention is considered unconstitutional in these
provinces. Article 2(1) of Cameroon’s Constitution provides that “National sovereignty shall
be vested in the people of Cameroon who shall exercise same either through the President of
the Republic and Member of Parliament or by way of referendum. No section of the people or
any individual shall arrogate to itself or to himself the exercise thereof”. Article 14 provides
that legislative power shall be exercised by the Parliament which is to legislate and control
Government action, and Article 26 provides that rules governing civil and commercial
obligations are reserved to the legislative power.”12

Insufficient knowledge of OHADA law

OHADA law is still not properly and efficiently applied in the Member States mainly because
professionals, still haven’t receive a proper training in OHADA law.

2.3 Current and future challenges

Overcoming current challenges

Conflicting interpretations of OHADA law
The drafting quality of the existing legislation should be improved in order to mitigate the risk
of conflicting interpretation of OHADA law and to improve the consistency of OHADA
legislation.

Functioning of OHADA institutions

The funding and correlated understaffing issues hamper the proper functioning of the
institutions and should be solved as soon as possible. The CCJA for example cannot face the
constant increase of its caseload without more staff. Lack of sufficient financial resources
result in a slowdown of the work of the organization. English- Portuguese- and Spanish
speaking judges should be part of the CCJA staffing in order to enable Non-French speaking
countries to better use this institution.

12
In « Business Law in Africa »

17

Non-cooperation of some Member States’ institutions
The lack of cooperation from some Member States’ institutions does not always mean that
these institutions are unwilling to implement OHADA’s legislation. The example of the
Englis-speaking provinces of Cameroon shows us that it can come from a language issue and
that translation of the OHADA law in other languages than French is needed.
The resistance of some national jurisdictions can partly be overcome by a better training of
the judges and legal practitioners and the active participation of national authorities in the
formulation of norms and provisions.

Preparing for future challenges

Reception of new Uniform Acts

The unification of the following additional business and legal regulations is expected soon :
competitions law intellectual property law, banking law, laws related to unincorporated forms
of business, law of contract and law of evidence.
This is a new challenge for OHADA Member States, who faced a complete revolution of their
business laws in a short period of time. The success of the reception and implementation of
the new Uniform Acts will heavily depend on the good-willingness of OHADA countries.

Reception of new members

More African States, not only members of the African Union, should join in the future and
many like Burundi, Cap-vert, Djibouti, Ethiopia, Ghana, Madagascar, Mauritania, Mauritius,
Nigeria, Rwanda, Sao Tome have already showed some interest.
But this geographical extension will only be possible if some reforms are made. French and
English should both become the official working languages of OHADA and the whole
OHADA legislation should be translated into English, Spanish and Portuguese. In addition, a
specific preparatory work will be needed before the adhesion of common law countries.

18
 3. Is OHADA a relevant model for ASEAN?

This part will discuss the question of the relevance of the OHADA model for ASEAN
countries and will demonstrate that ASEAN does not meet yet the criteria that could enable it
to follow the OHADA model…

Why is it not a relevant model ?

ASEAN is not an international organization

ASEAN is not an international organization but an association. It means that the entity does
not have a full international judicial personality and its rights and obligations are not distinct
from those of its Member States. The association’s scope of action is limited to the political
will of its members and no decisions can be taken without a consensus.
ASEAN ‘s situation is therefore very different from OHADA, which is an international
organization and has as such a full international judicial personality. Unlike ASEAN
countries, OHADA Member States decided to abandon parts of their sovereignty to the
organization in order to ensure the implementation of the Treaty on the harmonization of
business law in Africa. In the present context, OHADA goals could never be implemented in
the ASEAN system because it lacks full international judicial personality.

ASEAN is not primarily about legal integration

ASEAN is not about legal integration. The ASEAN Declaration states that the original “aims
and purposes of the Association are: (1) to accelerate economic growth, social progress and
cultural development in the region and (2) to promote regional peace and stability through
abiding respect for justice and the rule of law in the relationship among countries in the region
and adherence to the principles of the United Nations Charter”13.

Diversity of ASEAN countries

ASEAN ten Member States are very different and have therefore different needs in terms of
modernization of their legal legislation.

- Cultural differences

13
Source : www.aseansec.org/64.htm

19
Each of the ten Member States has its own cultural identity. The ASEAN countries do not
share the same language, history (colonies vs. former independent states) or religion
(Buddhist vs. Muslim vs multi ).

- Development differences
The development differences are huge between ASEAN countries, the highest developed
country being Singapore and the least developed country Burma. Singapore has a highly
developed economy with a secure legal environment that attracts a lot of foreign investors.
Burma on the opposite has become for political reasons a locked and under-developed
economy and attract few companies (except oil companies). Singapore is ranked by the World
Bank in 2008 as the easiest place to do business in the world. Malaysia and Thailand are also
considered as places where it is easy to do business, whereas the World Bank considers that it
is difficult to do business in Cambodia, Lao, Indonesia and in the Philippines and moderately
difficult in Vietnam.14
The level of economic development often reflects the level of advancement of business law
and use of arbitration law. Again, disparities in this area are huge, even if most of the ASEAN
countries have started to undertake legal reforms.

- Different legal systems

ASEAN countries do not share the same leg al systems as they do not share the same
colonization history. Thailand, Cambodia, Vietnam, Lao and Indonesia are civil law countries
whereas Burma and Singapore are common law countries. In Malaysia, a country with a
common law system, the Shariah law applies to the Muslim community. In the Philippines,
the common law system has largely been influenced by the Spanish civil law tradition.

Why could it become a relevant model?

ASEAN intends to become a more integrated institution

At the Ninth ASEAN Summit in October 2003, ASEAN countries decided to move forward
and to establish an ASEAN Community based upon three pillars, namely, ASEAN Security
Community, ASEAN Economic Community and ASEAN Socio-Cultural Community. The
“Vientiane Action Programme” launched one year later in order to attain this goal.

14
Source : http://rru.worldbank.org/businessplanet/

20
This move to community building is the result of the need for ASEAN to reposition itself in
order to remain a relevant model and face the challenges represented by the economic
globalization and the rise of China and India. The ASEAN Eminent Persons Group (EPG),
which comprises distinguished experts from ASEAN member states, was formed on
December 200515. EPG was mandated to provide the ASEAN leaders with broad policy
guidelines on the drafting of the ASEAN charter, which would enable the Association to
become an international organization with a legal personality. The report of the Eminent
Persons Group on the ASEAN charter16 was released in December 2006.
The ASEAN community is meant to be established by 2020 but many international observers
still doubt that ASEAN leaders will have the necessary will to create an international
organization. The entity is often seen as a “talk shop” big on words but small on action.

Legal harmonization already exists in ASEAN

Although legal integration does not belong to ASEAN original aims and purposes, legal
harmonization has recently become one of ASEAN field of work particularly in the area of e-
commerce.
e-ASEAN initiative
With the launch of the e-ASEAN initiative during the ASEAN leaders Annual Summit
meeting in Manilla on 28 November 1999, ASEAN leaders decided to develop a region-wide
approach to making comprehensive use of information and communication technology in
business, society and government. The e-ASEAN Framework Agreement was drafted in
November 200017 in order to facilitate the establishment of an ASEAN Information
Infrastructure. One of the task-force established after the launch of the e-ASEAN initiative
was the task-force on e-commerce. Since its creation, the aim of this taskforce has been to
integrate ASEAN into one market for goods, services and investment by the establishment of
a harmonised legal, regulatory and institutional environment for e-commerce through the
adoption of laws and policies based on international norms. The taskforce issued an e-
commerce reference framework in 2001 based on the e-commerce laws of ASEAN member
states. The reference framework, which is largely based on UNCITRAL’s Model Law on
Electronic Commerce and Draft Model Law on Electronic signatures, intended to provide a
guide for member states like Cambodia, Lao, Myanmar and Vietnam, who did not have any e-

15
11th ASEAN Summit Declaration in Kuala Lumpur, Malaysia on December 12, 2005
16
http://www.aseansec.org/19247.pdf
17
during the 4th ASEAN informal summit in Singapore

21
commerce law in place at this time. It also aimed at helping other member states to facilitate
cross-border e-commerce and cross-recognition of digital certifications and signatures. The
varying levels of e-readiness existing among ASEAN member states as well as the disparities
existing in the different e-laws already enacted by the 10 countries are the main challenges
faced by the taskforce today.

Final thought
As dissimilar as the OHADA and the ASEAN models now are, the two models might become
more convergent in the future. OHADA’s model has proven relevant but it still is a recent
organisation and more time and resources are necessary to make it become truly effective.
ASEAN has developed its own interesting form of legal harmonization and modernization
with the e-ASEAN initiative but real legal integration will only be possible in the context of
an international organisation with a legal personality. The community building process is still
in progress and nobody can yet predict what its outcome will be.

22
 Bibliography

Books
“Business law in Africa – OHADA and the Harmonization process” – Eversheds
“Droit de l’arbitrage OHADA”, Pierre Meyer, AUF

Internet websites
www.ohada.org
www.ohada.com
www.ohadalegis.com
www.jurisint.org/ohada/ohada.html
http://www.juriscope.org/infos_ohada/index.htm
http://www.aseansec.org/
http://www.galexia.com/
http://www.unescap.org/tid/publication/tipub2348_part1v.pdf
www.wikipedia.com

23
 Appendix :Treaty on the Harmonization of business law in Africa

TREATY ON THE HARMONISATION OF BUSINESS LAW IN AFRICA

Translation

PREAMBLE
The President of THE REPUBLIC OF BENIN
The President of BURKINA FASO
The President of THE CAMEROON REPUBLIC
The President of CENTRAL AFRICAN REPUBLIC
The President of ISLAMIC FEDERAL REPUBLIC OF THE COMOROS
The President of THE CONGO REPUBLIC
The President of IVORY COAST REPUBLIC
The President of GABONESE REPUBLIC
The President of EQUATORIAL GUINEA REPUBLIC
The President of MALI
The President of NIGER
The President of SENEGAL
The President of CHAD
The President of TOGO.
HIGH CONTRACTING AUTHORITIES TO THE TREATY ON THE HARMONISATION
OF BUSINESS LAW IN AFRICA.
Determined to accomplish new progress on the road to African unity and to establish a feeling
of trust in favour of the economies of the Contracting States in a view to create a new centre
of development in Africa;
Reaffirming their commitment in favour of the establishment of an African Economic
Community;
Convinced of the fact that their membership in the franc zone is an economic and monetary
stability factor and constitutes a major asset for the progressive realisation of their economic
integration and that this integration must be carried on in a larger African framework.
Mindful of the fact that the realisation of those objectives demands an application in the
Contracting States of a business law which is simple, modern and adaptable;
Conscious of the fact that it is essential that this law be applied with diligence in such
conditions so as to guarantee legal stability of economic activities and to favour expansion of
the latter and to encourage investment;
Desiring to promote arbitration as an instrument to settle contractual disputes;
Determined to participate in common new efforts to better the training of Judges and
Representatives of the law. Have agreed as follows:

24
TITLE I
GENERAL CLAUSES

Article 1
The objective of the present Treaty is the harmonisation of business laws in the
Contracting States by the elaboration and adoption of simple modern common rules
adapted to their economies, by setting up appropriate judicial procedures, and by
encouraging arbitration for the settlement of contractual disputes.
Article 2
So as to implement the present Treaty, it is to be understood by Business Law
regulations concerning Company Law, definition and classification of legal persons
engaged in trade, proceeding in respect credits and recovery of debts, means of
enforcement, bankruptcy, receiverships, arbitration; are also included the following
laws: Employment law, Accounting law, Transportation and Sales laws, and any such
other matter that the Council of Ministers would decide, unanimously, to so include as
falling within the definition of Business Law, in conformity with the objective of the
present Treaty and of the provisions of Article 8.
Article 3
The realisation of the tasks planned in the present Treaty shall be implemented by an
organisation called the Organisation for the Harmonisation of Business Law in Africa
(OHBLA), consisting of a Council of Ministers and a Common Court of Justice and
Arbitration.
The Council of Ministers shall be assisted by a Permanent Secretary Office to which is
attached a Regional High Judiciary School.
Article 4
Regulations for the implementation of the present Treaty will be laid down if
necessary by an overall majority of the Council of Ministers.

TITLE II
THE UNIFORM ACTS

Article 5
Acts enacted for the adoption of common rules as provided for in Article 1 of the
present Treaty are to be known as "Uniform Acts".
Uniform Acts may include provisions to give rise to criminal liabilities.
Contracting States commit themselves to enforce sentences of offences.
Article 6
Uniform Acts are to be prepared by the Permanent Secretary Office in consultation
with the Governments of Contracting States. They are to be debated and adopted by
the Council of Ministers on consultation with the Common Court of Justice and
Arbitration.

Article 7

25
 Draft versions of Uniform Acts are to be issued by the Permanent Secretary Office to
the Governments of Contracting States, who will have ninety days from the date of
reception of the draft versions to submit their written observations to the Permanent
Secretary Office.
After expiration of the ninety days delay period, the draft versions of the Uniform
Acts, supplemented with observations of the Contracting States and together with a
Report from the Permanent Secretary Office, is to be immediately forwarded to the
Common Court of Justice and Arbitration. The Court will declare its opinion thereof
within thirty days of its receipt of a request for consultation.
At the expiration of this consultation period, the Permanent Secretary Office will
finalise the text of the draft versions for the Uniform Acts, and ask that it be listed on
the agenda of the next Council of Minister's meeting.
Article 8
Adoption of the Uniform Acts by the Council of Ministers requires unanimous
approval of the representatives of the Contracting States who are present and who
have exercised their right to vote.
For such adoption of the Uniform Acts to be valid, at least two-thirds of the
Contracting States shall be represented.
Abstention does not delay adoption of the Uniform Acts.
Article 9
The Uniform Acts come into force ninety days after their adoption, except with regard
to particular clauses exempted therefrom by the Uniform Acts themselves. They may
be opposed within thirty days after their publication in the Official Journal of
OHBLA. The Acts are also to be published in the official publications of the
Contracting States or by any other appropriate means.
Article 10
Uniform Acts are directly applicable and overriding in the Contracting States
notwithstanding any conflict they may give rise to in respect of previous or subsequent
enactment of municipal laws.
Article 11
The Council of Ministers, upon recommendation on behalf of the Permanent Secretary
Office, approves the annual program for the harmonisation of Business laws.
Article 12
Uniform Acts can only be modified under the conditions provided in Articles 7 to 9, at
the request of any Contracting State.

26
TITLE III
LITIGATION CONCERNING INTERPRETATION AND ENFORCEMENT OF THE
UNIFORM ACTS

Article 13
Litigation regarding the implementation of Uniform Acts is settled in the first instance
and on appeal within the courts and tribunals of the Contracting States.

Article 14
The Common Court of Justice and Arbitration will rule on, in the Contracting States,
the interpretation and enforcement of the present Treaty, on such Regulations as laid
down for their application, and on the Uniform Acts.
The Court may be consulted by any Contracting State or by the Council of Ministers
on all questions falling within the field of the preceding paragraph. The right to
request the advice of the Court, as herein before mentioned, is recognised to the
national courts hearing a case where Article 13 applies.
By way of appeal, the Court shall rule on the decisions pronounced by the appellate
courts of Contracting States in all business issues raising questions pertaining to the
application of Uniform Acts and to the Regulations provided for in the present Treaty,
save decisions regarding penal sanctions pronounced by the appellate courts.
The Court will rule as above with regard to non-appeallable decisions delivered by any
national court of the Contracting States which pertains to those matters brought to the
attention of the Court by virtue of the above paragraphs.
While sitting as a court of final appeal, the Court can hear and decide points of fact.
Article 15
Final appeals, as provided in Article 14, are brought to the Common Court of Justice
and Arbitration, either directly by one of the parties to the proceedings or by referral
of a national court ruling on appeal, on a case to which it is referred and which raises
questions concerning the application of the Uniform Acts.
Article 16
The hearing of a case on appeal by the Court, stays automatically all proceedings in
view of instituting an appeal before a national court against the decision in question.
However this rule does not interfere with the execution of proceedings.
Such proceedings can only be carried out after that a decision of the Common Court of
Justice and Arbitration declares itself as lacking jurisdiction to hear the matter in
question.
Article 17
Manifest lack of jurisdiction of the Common Court of Justice and Arbitration Court
may be raised proprio motu and by all parties to the litigation in limine litis. The Court
shall reach a decision within thirty days.
Article 18
Any party who, having raised before a national court hearing an appeal from inferior
courts, that that national court lacks jurisdiction by virtue of the powers of the

27
 Common Court of Justice and Arbitration in the course of hearing the same appeal,
can thereafter appeal to the Common Court of Justice and Arbitration within two
months of the issue of the pronouncement of the contested determination.
The Court decides matters of jurisdiction on a ruling which it brings to the attention of
the parties, as well as to such national court which is involved.
If the Court finds that such a national court has wrongly declared itself competent in
determining an issue, the Court shall declare that latter determination as ultra vires and
quashed.
Article 19
The procedure before the Common Court of Justice and Arbitration is to be laid down
by Regulations adopted by the Council of Ministers pursuant to the provisions as set
out in Article 8 and shall be published in the official publication of the OHBLA, as
well as in the official publications of the Contracting States, or, as the case may be, in
or by any other appropriate means.
Proceedings shall be adversarial in nature. Each party must be represented by a duly
qualified lawyer. The hearing shall be held in public.
Article 20
The judgments of the Common Court of Justice and Arbitration are final and
conclusive. Execution and enforcement shall be ensured by the Contracting States on
their respective territories. In no case may a decision contrary to a judgment of the
Common Court of Justice and Arbitration be lawfully executed in a territory of a
Contracting State.

TITLE IV
ARBITRATION

Article 21
In applying a arbitration clause or an out of court settlement, any party to a contract
may, either because it has its domicile or its usual residence in one of the Contracting
States, or if the contract is enforced or to be enforced in its entirety or partially on the
territory of one or several contracting States, refer a contract litigation to the
arbitration procedure provided in this section.
The Common Court of Justice and Arbitration does not itself settle such
disagreements. It shall name and confirm the arbitrators, be informed of the progress
of the proceedings, and examine decisions, in accordance with Article 24.
Article 22
Disagreements may be settled by one arbitrator or by three arbitrators. In this and the
following articles, the expression "the arbitrator" means either one or more arbitrators.
When the parties have agreed that the disagreement will be settled by only one
arbitrator, they may appoint him under a mutual agreement subject to approval of the
Court. If there is any disagreement between the parties, an arbitrator shall be appointed
by the Court within thirty days from the date of notification from one party to another
to have recourse to arbitration.

28
 Where three arbitrators are to hear a matter, each party - pursuant to a request for an
arbitrator and in view to comply to such a request - shall appoint an independent
arbitrator, such appointment being subject to the approval of the Court. If one of the
parties refuses or cannot do so, the Court shall appoint an arbitrator on behalf of that
party. A third arbitrator, shall also be appointed solely by the Court and who will sit as
Chairman. The Court may however allow the choice of the third arbitrator to be made
by the two other arbitrators only where there the latter have given an undertaking that
they would elect as between them a third one, and this within a given period. In such a
case, it is to the Court to approve the third arbitrator. If, at the expiration of the period
fixed by the parties or allowed by the Court, the arbitrators cannot reach an agreement
between themselves, the third arbitrator shall be chosen and appointed by the Court.
If the parties have not agreed upon the number of arbitrators, the Court shall appoint
one sole arbitrator, unless it appears to the Court that the case must be tried by three
arbitrators. In such a case, each party shall have fifteen days to appoint an arbitrator.
The arbitrators may be chosen from the list of arbitrators established by the Court and
updated annually. Members of the Court cannot be registered on that list.
The Court may rule on any challenge of an arbitrator by any party.
An Arbitrator shall be replaced in such circumstances as hereinafter set out, namely,
where he or she has passed away, he or she is unable to perform his or her duties, he or
she is to resign from office whether by reason of a challenge as to his or her suitability
or otherwise, and where the Court, after enquiry decides that he or she has not fulfilled
his or her obligations according to such rules of arbitration as may be applicable and
according to this Treaty, or within such time as has been specified in relation to any
matter. In any case, the proceedings must with paragraphs two and three of this article.
Article 23
Any national court of a Contracting State hearing a case wherein the parties have
agreed that the matter to be resolved by arbitration shall hold itself as lacking
jurisdiction to hear the case and, if necessary, refer the matter to Arbitration
Proceedings.
Article 24
Before signing a partial or final award, the arbitrator shall submit the proposed
decision to the Common Court of Justice and Arbitration, which may suggest any
formal amendments to such a decision.
Article 25
Award pronounced in compliance with the stipulations provided herein shall have
final and conclusive authorities in the territory of each Contracting State as judgments
delivered by their national courts.
Such decisions may be enforced and executed by an order of Exequatur
Only the Common Court of Justice and Arbitration has jurisdiction to pronounce an
order of Exequatur.
Exequatur may not be issued in the following cases:
1) The Arbitrator has not ruled by virtue of an agreement giving him jurisdiction, or
has ruled by virtue of a void or expired agreement
2) The Arbitrator has not ruled in compliance with its conferred mandate.

29
 3) The principle of adversarial procedure has not been respected.
4) The decision is contrary to international public order.
Article 26
The Arbitration Regulations of the Common Court Justice and Arbitration Court shall
be laid down by the Council of Ministers under the conditions provided for in Article
8. They shall be published in the Official Journal of the OHBLA, and shall also be
published in the official publications of the Contracting States and in or by any other
appropriate means.

TITLE V
THE INSTITUTIONS

Article 27
The Council of Ministers shall consist of the Ministers responsible for Justice and
Ministers responsible for Finance.
The chair of the Council shall be vested in turn by each Contracting State for a
duration of a year, in the following order:
Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Congo, Ivory
Coast, Gabon, Equatorial Guinea, Mali, Niger, Senegal, Chad (Tchad), and Togo.
Where a Contracting State cannot assume the chair of the Council of Ministers during
such a year in which it has to do so, the Council shall appoint the chair to the next
Contracting State according to the order provided as above.
Article 28
The Council of Ministers shall meet at least once a year upon notification from the
Chairman, such notification being issued on his initiative or on the initiative of a third
of the Contracting Parties. No deliberation shall take place unless at least two-thirds of
the Contracting States are represented.
Article 29
The Chairman of the Council of Ministers set the agenda upon proposals from the
Permanent Secretary Office.
Article 30
The decisions of the Council of Ministers, other than those provided in Article 8, are
reached by an overall majority of the Contracting States present and voting. Each State
can cast only one vote.
Article 31
The Common Court of Justice and Arbitration shall consist of seven Judges elected for
seven years and reeligible once, from among the nationals of the Contracting States, in
the following functions and under the following conditions:
1) Judges having acquired a judicial experience of at least fifteen years and having
exercised high judicial functions.
2) Barristers who are members of the Bar of one of the contracting States and who
have at least fifteen years standing.

30
 3) Law Professors having at least fifteen years of professional experience.
Only two members of the Court may belong to the categories referred to in paragraphs
2 and 3 hereabove.
One seventh of the Court is renewed each year.
The Court shall not consist of more than one national of the same State.
Article 32
The members of the Court are elected by secret ballot by the Council of Ministers
from a roll of nominated candidate presented for this purpose by the Contracting
States.
Every State may nominate two or more candidates.
Article 33
The Permanent Secretary Office shall invite the Contracting States to proceed, within
a period of at least four months before the elections, with the nomination of candidates
to the Court.
The Permanent Secretary Office shall establish an alphabetical roll of the nominated
candidates and shall provide a copy thereof to the Contracting States at least one
month before the polling date.
Article 34
After their election, the members of the Court shall solemnly take oath to undertake
faithfully their functions in full impartiality.
Article 35
In the event of death of a member of the Court, the President of the Court immediately
informs the Permanent Secretary Office thereof and the Permanent Secretary Office
declares the seat vacant since the date of death.
In case of the resignation of a member of the Court, or if, with the unanimous consent
of the other members of the Court, a member has ceased to fulfil his functions for any
other reason other than of a temporary nature, or is no more capable of fulfilling them,
the President of the Court, after having invited the concerned member to appear before
the Court and to give his oral submissions, shall inform the Permanent Secretary
Office who shall declare the seat vacant.
In each of the hereabove circumstances, the Council of Ministers shall proceed under
the conditions of Articles 32 and 33, for the replacement of the member whose seat
become vacant, for the period of the mandate still to be carried on, except if six
months or less remain in the mandate.
Article 36
The members of the Court shall have the security of tenure.
All members of the Court shall remain in duty until the date when his successor takes
up his office.
Article 37
The Court shall elect among its own members, for a duration of three years and a half
non renewable, its President and two Vice Presidents. The members of the Court
whose mandate length is still running at the date of the election and is less than this

31
 duration, may be elected to exercise those functions until the expiration of their
mandate. They can be reappointed to those functions if they are elected by the Council
of Ministers to exercise a new mandate as member of the Court. No member of the
Court shall exercise political or administrative functions. All remunerated activities
must be authorised by the Court.
Article 38
The duration of the mandate of the seven Judges nominated simultaneously for the
initial constitution of the Court will be respectively for three years, five years, six
years, seven years, eight years and nine years. The mandate for each Judge will be
determined by drawing lots,
executed by the President of the Council of Ministers, during a session of the Council
of Ministers. The first renewal of the Court will take place three years from the date of
its initial constitution.
Article 39
The President of the Common Court of Justice and Arbitration shall appoint the chief
Registrar of the Court on advice of the Court, from among the chief Registrars of at
least fifteen years standing, and presented by the member States. Upon proposal of the
chief Registrar, the President shall fix, the other offices of the Court.
The chief Registrar is in charge of the Registrar office of the Court.
Article 40
The Permanent Secretary shall be appointed by the Council of Ministers for a four
years term of office, renewable once.
He shall appoint his staffs in compliance with the conditions for the recruitment laid
down by the council of Ministers and within the fixed number the staffs provided in
the budget.
He shall be in charge of the Permanent Secretary Office.
Article 41
A Regional High Judiciary School shall contribute to the training and improvement of
the Judges and judiciary staff of the contracting States.
The Director of the School shall be appointed by the Council of Ministers.
The organisation, management, resources and the services of the School will be
defined by a regulation of the Council of Ministers laid down upon the report of the
school Director.
Article 42
French shall be the working language of OHBLA.

32
TITLE VI
FINANCIAL PROVISIONS

Article 43
The resources of the OHBLA consist principally of:
a) The annual contribution of the contracting States,
b) The loans concluded in conventions signed by OHBLA with States or international
organisations,
c) Gifts and legacies.
The sum of the contributions of the contracting States fixed by the Council of
Ministers. The Council of Ministers shall approve the conventions referred to in
paragraph b) and accepts the gifts and legacies referred to in paragraph c).
Article 44
Costs rate for the arbitration proceedings provided by the present Treaty as well as the
distribution of the corresponding receipts shall be approved by the Council of
Ministers.
Article 45
The annual budgets of the Common Court of Justice and Arbitration and of the
Permanent Secretariat shall be approved by the Council of Ministers.
The accounts for each accounting period shall be certified by commissaries of
accounts appointed by the Council of Ministers. They shall be approved by the
Council of Ministers.
TITLE VII
STATUS, IMMUNITIES AND PRIVILEGES

Article 46
The OHBLA has full international judicial personality. It has in particular the
capacity:
a) to contract;
b) to acquire furniture and real estate and to transfer them; and
c) to initiate legal proceedings and to be a party in litigation's
Article 47
So as to fulfil its duties properly, the OHBLA shall possess on the territories of each
contracting State immunities and privileges provided in the present title.
Article 48
The assets and possessions of the OHBLA shall not be subject to any judicial action,
except if it renounces to its immunity.
Article 49
The civil servants and employees of the Permanent Secretariat Office, the Regional
High Judiciary School and the Common Justice and Arbitration Court, as well as the
Judges of the Court and the Arbitrators designated by the latter, shall possess

33
 privileges and diplomatic immunities during the exercise of their functions.
Furthermore, the Judges shall not, without due authorisation of the Court, be
prosecuted for acts accomplished outside their official capacities.
Article 50
Nobody shall have access to the archives of OHBLA wherever they are.
Article 51
OHBLA, its properties, possessions and revenues as well as the operations authorised
by the present Treaty are exonerated from all taxes and custom duties. The OHBLA is
also exempt from any obligation related to the recovery or payment of taxes or custom
duties.
TITLE VIII
PROTOCOL CLAUSES

Article 52
The present Treaty shall be ratifies by the signatory States in accordance with their
respective constitutional processes.
The present Treaty shall come into force sixty days after the date of deposit of the
seventh instrument of ratification. However, if the date of the deposit of the seventh
instrument of ratification is earlier than the hundred eightieth day that follows the day
of signature of the Treaty, the Treaty will be enforceable the two hundred fortieth day
following the day of its signature.
With regard to any contracting State which shall deposit later its instrument of
ratification, the Treaty and the Uniform Acts adopted before the ratification will be
enforceable sixty days after the date of the aforesaid deposit.
Article 53
The present Treaty, as soon as it becomes enforceable, is open to all members of the
O.A.U. not signatory of the Treaty. It is equally open to the adhesion of any other
State not member of the O.A.U. invited to adhere to it, upon unanimous agreement of
all contracting States.
With regard to any contracting State, the present Treaty and the Uniform Acts
approved before its admission shall come into force sixty days after the deposit of the
instrument of admission.
Article 54
No reserve is allowed to the present Treaty.
Article 55
As soon as the Treaty comes into force, the common institutions provided in Articles
27 to 41 will be established. Signatory States which have not yet ratified it may
moreover sit at the Council of Ministers in the capacity of observers without right to
vote.
Article 56
Any dispute that may arise between contracting States regarding the interpretation or
the application of the present Treaty and which would not be settled amiably may be
referred by a contracting State to the Common Court of Justice and Arbitration.

34
 If a Judge of the nationality of one of the parties is sitting in the Court, any other party
may appoint an ad hoc Judge to sit for the hearing of the case.
This last one will have to fill the conditions provided in Article 31.
Article 57
The instruments of ratification and the instruments of adhesion will be filed with the
Government of Senegal which will be the authorised depository Government.
Article 58
Any State ratifying the present Treaty or adhering to it after an amendment to the
present Treaty has become enforceable shall be deemed to be a party to the Treaty as
amended.
The Council of Ministers adds the name of the adherent State on the list provided by
Article 27, preceding immediately the name of the State which assumes the presidency
at the date of the admission.
Article 59
The depository Government shall register the Treaty to the Secretary of the O.A.U.
and to the United Nations Secretary Office in accordance with Article 102 of the
United Nations Charter.
Article 60
The depository Government will inform without delay all the signatory or adherent
States of:
a) the dates of signatures
b) the registration dates to the Treaty
c) the filing dates of the instruments of ratification and adhesion.
d) the date of the coming into effect of the Treaty.

TITLE IX
REVISION AND DENUNCIATION

Article 61
The present Treaty may be amended or revised if a contracting State sends to that
effect a written request to the Permanent Secretary Office of OHBLA. The amendment
or the revision must be adopted in the same form as the Treaty.
Article 62
The present Treaty has an unlimited duration. In any event it shall not be denounced
ten years before its coming into effect.
Any denunciation of the present Treaty must be notified to the depository Government
and will take effect only one year after the date of such notification.
Article 63
The present Treaty, written in two copies in the French language, will be deposited in
the archives of the Republic of Senegal which shall deliver a certified true copy to
each Government of the contracting States.

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 In witness thereof, the Head of States and plenipotentiaries undersigned have affixed
their signatures at the end of the present Treaty.

The President of the Republic of Benin Mr Nicéphore SOGLO

The President of Burkina Faso Mr Blaise COMPAORE
The President of the Cameroun Republic P.p. Mr Paul BIYA, Minister of Foreign
Affairs
The President of Central African Republic Mr Ange-Félix PATASSE
The President of Islamic Federal Republic Mr SAID MOHAMED DJOHAR
of the Comoros
The President of the Congo Republic Mr Pascal LISSOUBA
The President of Ivory Coast Republic P.p. Mr Alassane Dramane OUATTARA,
The Prime Minister
The President of Gabonese Republic P.p. Monsieur Casimir Oyé MBA, The
Prime Minister
The President of Equatorial Guinea General Téodoro, OBIANG NGUEMA
Republic MBASOGO
The President of Mali Mr Alpha Oumar KONARE
The President of Niger Mr Mahamane OUSMANE
The President of Senegal P.p. Mr Moustapha NIASSE, The State
Minister, Minister of foreign affairs and
expatriate senegalese
The President of Chad Colonel Idriss DEBY
The President of Togo Mr Gnassingbé EYADEMA

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