Arbitration in Africa under OHADA Rules

Increased international investment in African countries over recent decades has called
for a harmonized legal environment across borders creating, inter alia, a modern
arbitration system.The 1993 Treaty establishing the Organization for the Harmonization
of Business Law in Africa (OHADA) took a giant step toward meeting this need and
improved and consolidated its achievements with major arbitration­related revisions
enacted in 2017 that came into force in 2018. This book, the first methodical analysis in
English, describes in great detail the two distinct arbitration regimes—ad hoc and
institutional—that characterize the system, equipping practitioners with everything they
need to know to conduct arbitral proceedings efficiently in any of the OHADA’s
seventeen Member States.
Read more

Select to export

Expand all Collapse all

Select to search

 pp. ix-x
About the Author
 pp. xxv-xxvi
Foreword
 pp. xxvii-xxviii
Preface
 pp. xxix-xxxii
List of Abbreviations
 pp. xxxiii-xxxiv
Acknowledgments
 pp. 1-10
Introduction
 pp. 11-22
Part I: The Arbitration Agreement
 pp. 23-92
Part II: The Arbitration Procedure
 pp. 93-120
 Part III: The Arbitral Award
 pp. 121-190
Part IV: Annulment, Third­Party Opposition and Revision of Arbitral Awards
 pp. 191-206
Part V: Recognition, Enforcement & Other Effects of Awards
 pp. 207-284
Appendices
 pp. 285-288
Bibliography
 pp. 289-294
Glossary
 pp. 295-306
Cases and Precedents
 pp. 306-308
Table of Legislation
 KluwerArbitration

Document information Introduction

Almost twenty-seven years have passed now since several African States, from different
Publication regions of the continent, have signed the Treaty creating the “Organization for the
Harmonization of Business Law in Africa” (1) (the Treaty) to stimulate foreign investments
Arbitration in Africa under and foster economic growth. In the preamble of the Treaty, the signatories’ heads of
OHADA Rules States and Governments declared themselves “willing to promote arbitration as an
instrument for resolving contractual disputes” (2) after affirming their determination “to
build a stream of confidence in their countries’ economies to create a new development
Organization hub in Africa.” (3)
Cour Commune de Justice Later revised (4) and currently in force in seventeen African countries, (5) the Treaty is
et d’Arbitrage de open to all African States, whether or not they are members of the African Union (AU).
l’Organisation pour Even non-AU countries are explicitly eligible to ratify the treaty, so long as the existing
l’Harmonisation en Afrique members approve their membership. (6)
du Droit des Affaires The Treaty creates a dual legal system, where national laws coexist with the business
legislation (7) instituted by OHADA. OHADA laws supersede national laws that cover the
same subject matter. Thus, OHADA has limited jurisdiction, and it trumps only business
Bibliographic reference laws, including procedures relating to OHADA laws. Adoption of the OHADA treaty
modernizes business legislation in the member states by the process of unification, which
'Introduction', in Mahutodji substitutes the new legislation for preexisting national laws in relevant areas of business.
Jimmy Vital Kodo , Harmonization is also mentioned in the treaty since OHADA is an “organization for the
Arbitration in Africa under harmonization of law.” Harmonization integrates community law within the framework of
OHADA Rules, (© Kluwer national laws. It can be effected by replacing preexisting national laws with new laws, or
Law International; Kluwer by setting a framework within which non-identical national laws must be oriented to
Law International 2020) pp. reach a common goal. (8) The law-making body of OHADA has used these two techniques
1 - 10 of harmonization by fostering the enactment of new laws by coordinating with non-
conflicting national legislation that remains applicable. The Treaty unifies business law
by making the Uniform Acts as an integral part of the national legislation of the Member
States without the necessity of further action by national parliaments. The Uniform Acts
created under the Treaty (9) automatically and directly repeal all preexisting contrary
legislation and supersede any future legislation in the covered areas. (10)

Under Articles 27-31 and 41, the institutional framework of the organization consists of the
Conference of Heads of States, (11) the Council of Ministers, (12) the Common Court of
Justice and Arbitration (CCJA), the Permanent Secretary and a Regional School of
magistracy. The CCJA is a supranational Court aimed at ensuring that the Uniform Acts are
interpreted and applied uniformly, thereby further ensuring the unification of business
laws across the OHADA Member States. The jurisdiction of the CCJA includes: (13)
1. review, as a supranational cassation Court, of decisions and rulings of Appellate or
High Courts, Courts of appeal and non-appealable decisions rendered by any
national court of Member States, but only in cases involving the application of the
Uniform Acts. In most cases, after overturning or quashing a judgment of a lower
court, the CCJA performs de novo review of the case, which is the main difference
between the CCJA and other supreme or cassation courts, such as the Cassation
court of France;
2. issuance of advisory opinions upon requests from Member states, the Permanent
Secretary and any national court before which an OHADA-related case is pending;
3. administration of institutional arbitration proceedings under the CCJA Arbitration
Rules.
As an appellate Court, the CCJA has the power to render final decisions in the cases
brought before it. It has the same powers and acts as National Supreme Courts of the
Member States of OHADA in the fields of OHADA Legislation. The CCJA has final and
exclusive jurisdiction, and its decisions and rulings have the authority of a final judgment
(res judicata) and are immediately enforceable in each Member State. (14) The CCJA has
jurisdiction and is competent as long as any challenged decision of a national court
contains issues or questions relating to the Uniform Act. (15) Therefore, the CCJA has the
final word regarding interpretation and application of the Uniform Acts, except for criminal
offenses. (16) However, in some limited cases, the CCJA can be flexible in its decisions. (17)

This book is aimed at presenting in detail the two arbitration systems under OHADA
Rules, equipping the practitioners with everything they need to know to conduct arbitral
proceedings efficiently. It was much needed because there was no English publication on
the topic in the world, while there is an increasing need for it. The Treaty covers a
geographic scope of 9,124,233 km2 and a population of 287,716,192 inhabitants, probably
the largest and most populated regional integration Treaty on the African continent.

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 Many of the States Parties to the Treaty in Africa are known for their mining of natural
resources, many of which are part and parcel of many industries across the planet, (18)
with some countries of the OHADA geographic zone owning more than 50% of the
worldwide reserves of some rare minerals. (19) Many multinational companies that deal
in minerals sign agreements with investment arbitration clauses within the OHADA States
Parties, and it is important that the people who advise those companies are aware of the
new arbitration regime currently in force in those seventeen countries, both for
commercial and investor-state arbitration.
The OHADA Arbitration Rules having been recently revised, it was the right time for
writing this book, with which practitioners would need to be acquainted if they are to
provide good value arbitration services to their clients wherever they are situated across
the planet and whatever their position (investors, governments, etc.).
The role of the CCJA both as an arbitral institution and the Court of Final Appeal for
arbitral awards has been presented in the past, (20) and the focus of the present book
is to provide the reader with a clear and detailed presentation of the arbitration
mechanisms available under OHADA Rules.
The most important thing to keep in mind while going through this book is that there are
two different sets of Rules leading to two different procedural paths that must not be mixed.
In other words, the arbitration system is twofold under current OHADA Rules:
1. there is mainly ad hoc arbitration governed by the Uniform Act on Arbitration (UAA),
which was revised on November 23, 2017 and entered into force on February 23,
2018; (21)
2. and an institutional arbitration under the aegis of the CCJA governed by the following
Rules:
2.1. Articles 21-25 of the Treaty; (22)
2.2. The CCJA Regulation on Arbitration, which was revised on November 23, 2017
and entered into force on February 23, 2018, as well as its appendixes which
are, to date, nine as follows; (23)
2.3. Arbitration Bylaws of the CCJA of June 2, 1999;
2.4. Prescriptive Decision of the CCJA N° 004/99/CCJA of February 3, 1999 on
Arbitration Costs; (24)
2.5. Prescriptive Decision of the CCJA N°020/2013/CCJA/ADM/ARB of March 14, 2013
Setting the Time Limit for Paying the Provisional Advance on Arbitration Costs;
2.6. Prescriptive Decision of the CCJA N°022/2013/CCJA/ADM/ARB of March 14, 2013
Setting the Terms for the Advance Grant on the Arbitrator’s Fees;
2.7. Prescriptive Decision of the CCJA N°030-Bis/2004/CCJA/ADM/ARB of August 16,
2004 Setting the Terms of Allocation of Fees Among Arbitrators;
2.8. Prescriptive Decision of the CCJA N° 50/2011/CCJA/ADM/ARB of October 10,
2011 Setting the Personal Costs of the Arbitrators and the Costs of the Arbitral
Tribunal;
2.9. Prescriptive Decision of the CCJA N°0198/2017/CCJA/ADM/ARB of December 18,
2017 on the Appointment of Administrative Secretaries and the Setting of Their
Duties;
2.10. Prescriptive Decision of the CCJA N°068/2018/CCJA/ADM/ARB of April 18, 2018
Setting the Terms and Conditions of Registration on the Arbitrators’ List of the
CCJA and its Updating;

2.11. Prescriptive Decision of the CCJA N° 069/2018/CCJA/ADM/ARB of April 18, 2018

Setting the Costs of the Procedural Acts of the Court in Matters of Arbitration.
All but one of the States Parties to the Treaty are civil law countries, Cameroon being the
only OHADA jurisdiction that also includes a common law tradition because it has both
legal systems. Since March 21, 2010, when the revised version of the Treaty came into
force, (25) all the four official languages of the States Parties (French, English, Spanish and
Portuguese) became the working languages of OHADA. (26) Even though French is the
prevailing language of the organization, (27) it has been specified, since the revised
Treaty is enforceable, that no party to proceedings before the CCJA can be precluded
from submitting briefs and exhibits in any of the four official languages. (28) The Treaty
and most of the Uniform Acts were recently translated into English, (29) but there is, to
date, no official English version of the new statutes enacted by the organization in
November 2017 and which are the subject of the present book, namely the UAA and the
CCJA Regulation on Arbitration. This situation raises some organizational and conceptual
problems because of the prevalence of French in the Treaty. As a legal scholar from
Cameroon puts it:
Implicitly, any document in English or any other language would be a
translation from French to English or Spanish or Portuguese. Most of the texts
in translation have been criticized for being literal, inadequate and rather
nebulous. They are simply approximations, and in many cases there are no

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 legal equivalents in English. There is a need for co-drafting of future OHADA
Uniform Acts in order to avoid translation. Furthermore, it would be desirable
to have a co-revision team to work together on the existing Uniform Acts. This
team should employ contextual meanings of terminologies and the
adaptation approach to translation. Member States should develop an OHADA
lexicon of words, phrases and concepts. This would go a long way, clarifying
the misunderstandings of legal jargons and terminologies. (30)
The lack of an official English version, combined with the need for revision of the existing
Uniform Acts, as highlighted by Ms. Tumde above, and the existence of some substantial
inaccuracies in the non-official English version of the revised UAA and the CCJA
Regulation on Arbitration available on the official website of the organization, (31) have
prompted me to carry out a full revision of those versions of the two statues before
starting to write this book. Alongside that, some editorial policy decisions have had to be
made for the purposes of clarity, simplicity and consistency.
For example, Under Article 12, paragraph 2 of the UAA in my improved version, “The legal
or contractual time limit for the arbitration may be extended, either by agreement of the
parties, or at the request of one of the parties or of the arbitral tribunal, by the
competent court in the State Party.” “Or” has been removed before “by” because if not
removed, the sentence would mean that the competent court in the State Party can also
request the extension of the time limit, which is not what the original French version of
the Uniform Act states.
In the CCJA Regulation on Arbitration, Article 3.2 of my improved version states that
“Arbitrators may be chosen from the list of arbitrators drawn up by the Court and
updated annually. The members of the Court cannot be included on the said list.” “May
be” has been replaced with “cannot” because the translated version “The members of the
Court may be included on the said list” conveys exactly the opposite of the original French
version, as well as Article 3 of the Arbitration Bylaws of the CCJA of June 2, 1999 under
which no member of the CCJA can be personally involved in arbitration proceedings under
the CCJA Rules.
I also restored the right content of the CCJA Regulation on Arbitration, Article 22.3
paragraph 3, which states “However, if one or two arbitrators refuse to sign the award, it
must be mentioned and the award has the same effect as if it had been signed by all the
arbitrators.” “A minority of them refuses” has been replaced with “one or two arbitrators
refuse.” It is important to note that the French original version specifically refers to the
refusal of “one or two arbitrators” (“si un arbitre ou deux arbitres refusent de la signer”).
Therefore, this passage cannot be translated by ‘a minority’ because two arbitrators out
of three are absolutely not a minority. I also added the missing parts of some provisions
and reorganized the paragraphs as did the Legislator. (32)
In order to avoid any confusion in reference to the rules, I changed the title “Arbitration
Rules of the Common Court of Justice and Arbitration” into the “Regulation of the Common
Court of Justice and Arbitration on Arbitration” (the CCJA Regulation on Arbitration), (33)
because as mentioned supra, institutional arbitration under the aegis of the CCJA is
governed by a set of rules (currently 11), of which only one is the Regulation on
Arbitration. Thus, calling that single rule “Arbitration Rules of the CCJA” would be
confusing in singling out all the other ten rules that are part of the set.
Likewise, in the vast majority of cases where an obligation is expressed by the Legislator,
I replaced “shall” with “must” in the UAA and the CCJA Regulation on Arbitration to be
in line with the rule in Gutierrez de Martinez v. Lamagno, where the U.S. Supreme Court
held that “shall” means “may,” (34) and which is widely acknowledged across majors
common law jurisdictions across the planet such as Australia, United Kingdom, and
Canada where “certain drafters … have determined that drafters cannot be trusted to
correctly use the word ‘shall’ and have forbidden its use.” (35) In few cases, “shall” has
been replaced with the present indicative tense, which is widely known to convey an
obligation or a mandatory rule in many major Civil Law jurisdictions such as Canada
(because of Quebec) (36) and France, (37) as well as in the States Parties to the Treaty, as
demonstrated by the ruling in Ngot v. Dietsman Technologie Internationale, where the
Court of Appeal of Pointe-Noire (Congo) held that “It follows from the use of the present
indicative … that these provisions [containing the present indicative] are mandatory and
confer a public order character.” (38)
I also simplified and clarified the style, for example by replacing “pursuant to” with
“under” or “in accordance with,” for reference to a provision of the rules and used gender-
neutral expressions such as the singular “they” or “them” instead of “he” or “she” or
“their” instead of “her” or “his,” according to the most recent rules of the American
Psychological Association (APA). (39)
While most of these changes were required to restore the exact meaning of the translated
rules, some of these changes were simple editorial choices aimed at improving the style
and without pretending having done a perfect job, I believe my improvements to the
translated rules, which are all shown in italics in the Appendixes, will enhance the rules
and ensure their efficient use by the readers, whatever their purpose may be.
The book is structured in five parts: Part I will present the arbitration agreement under

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 the OHADA Rules. Part II will present the arbitration procedure; Part III will be dedicated
to the arbitral award. Part IV will present the possible remedies and recourse against
arbitral awards, and Part V will focus on recognition, enforcement and other effects of
arbitral awards.

References
1) The Treaty creating the Organization for the Harmonization of Business Law in Africa
(commonly abbreviated as “OHADA,” from the French acronym), the Treaty, or OHADA
Treaty, was signed by fourteen African Heads of States on Oct. 17, 1993 in Port Louis
(Mauritius). Parts of the historical background of OHADA presented in this
introduction have first appeared in my former publication: B. Mercadal, M.J.V. Kodo &
Y. Agboyibo, OHADA Member States, in International Bank and Other Guarantees
Handbook: Middle East and Africa 411-454(Y. Aubin, L. de Longeaux & J.C. Vecchiatto
eds., Kluwer Law International 2011 (Mercadal, Agboyibo & Kodo, OHADA Member
States, 2011). Unless otherwise specified, “the Treaty” refers to the OHADA Treaty
throughout the entire book.
2) Official Journal of OHADA, N° 4, Nov. 1, 1997, p. 1 [Emphasis added]. (OHADA, 1997).
3) Id.
4) The OHADA Treaty was revised on Oct. 17, 2008 in Quebec (Canada).
5) In the order of ratification, the OHADA Member States are: Bissau Guinea (Jan. 15,
1994), Senegal (Jun. 14, 1994), Central African Republic (Jan. 13, 1995), Mali (Feb. 7,
1995), Comoros (Feb. 20, 1995), Burkina Faso (Mar. 6, 1995), Benin (Mar. 8, 1995), Niger
(Jun. 5, 1995), Ivory Coast (Sep. 29, 1995), Cameroon (Oct. 20, 1995), Togo (Oct. 27, 1995),
Chad (Apr. 13, 1996), Congo (May 28, 1997), Gabon (Feb. 2, 1998), Equatorial Guinea (Apr.
16, 1999) and Guinea (May 5, 2000). See Jacqueline Lohoues Oble, Traité du 17 Octobre
1993 Relatif à l’Harmonisation du Droit des Affaires en Afrique, in OHADA:Traité et Actes
Uniformes Commentés et Annotés, 63 (J. Issa-Sayegh et al., eds., 2nd ed., Juriscope
2002). Democratic Republic of Congo (DRC) is the last country to sign the Treaty on
OHADA, under the Law n° 10/002 on adhesion of Democratic Republic of Congo to
OHADA, promulgated on Feb. 11, 2010: http://www.droit-
afrique.com/upload/doc/rdc/RDC-Loi-2010-02-adhesion-OHADA.pdf, accessed Aug.
26, 2020. See also http://www.ohada.com/actualite/1614/depot-des-instruments-d-
adhesion-de-la-rdc-a-l-ohada-dakar-13-ju..., accessed Aug. 26, 2020.
6) Under Article 53 of the revised OHADA (Oct. 17, 2008), The African Union (UA), current
successor to the Organization of African Unity (OAU), may also be a party to the
OHADA Treaty although not a sovereign nation.
7) “Business Legislation” in OHADA system, under Article 2 of the OHADA Treaty refer to
“all the rules relating to corporate law and the legal status of traders, debt
collection, security interests and enforcement, companies receivership and judicial
liquidation, arbitration law, labor law, accounting law, sales and transport law, and
any other matter that the Council of Ministers would unanimously decide to include,
in accordance with the purpose of this treaty and under Article 8.”
8) For more details, see J.A. Yakubu, Community Laws in International Business
Transactions, in Unified Business Law for Africa: Common Law Perspectives on OHADA, 4
(C. Moore Dickerson ed., GMB Publishing 2009) (Yakubu, 2009). Although harmonization
is mentioned in the Treaty, OHADA, in fact, unifies business law, and the word
“harmonization” was used instead of “unification” consciously and for political
reasons.
9) To date, ten Uniform Acts have been enacted, ratified and are enforceable: the
Uniform Act Relating to General Commercial Law (Apr. 17, 1997, revised Dec. 15, 2010);
Uniform Act Organizing Securities (Apr. 17, 1997, revised Dec. 15, 2010); Uniform Act
Relating to Commercial Companies and Economic Interest Group (Apr. 17, 1997,
revised Jan. 30, 2014); Uniform Act Organizing Collective Proceedings for Wiping Off
Debts (Apr. 10, 1998, revised Sept. 10, 2015); Uniform Act Organizing Simplified
Recovery Procedures and Measures of Enforcement (Apr. 10, 1998); Uniform Act on
Arbitration (Mar. 11, 1999, revised Nov. 23, 2017); Uniform Act Organizing and
Harmonizing Company Accounting Systems (Mar. 22, 2000, revised Jan. 26, 2017);
Uniform Act on Contracts for the Carriage of Goods by Road (Mar. 22, 2003); Uniform
Act Relating to Cooperative Companies (Dec. 15, 2010) and the Uniform Act on
Mediation (Nov. 23, 2017).
10) OHADA Treaty, Art. 10. For an application by the CCJA, see Yovo v. Societe Togo
Telecom, N° 043/2005, Decision, Common Court of Justice and Arbitration [C.C.J.A.]
(Jul. 7, 2005), http://www.ohada.com/jurisprudence/ohadata/J-06-32.html.
11) Under Article 27 of the Treaty, the Conference of Heads of States has exclusive
jurisdiction to rule on any issue pertaining to the OHADA Treaty.

4
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 12) Often referred to as the “Community legislator, which is made up of all the member
states of OHADA each with a different judicial organization from each other” (see
Thales Security Systems v. Kattie, N° 034/2012, Decision, CCJA, 2e ch. (Mar. 22, 2012)
[emphasis added], the law-making body of OHADA, or the “OHADA Legislator”
designates, under Articles 8 and 27 of the OHADA Treaty, mainly the Council of
Ministers of OHADA and incidentally the Conference of Heads of State when it gathers
to modify provisions of the Treaty.
13) OHADA Treaty, Art. 14.
14) See id. Art. 20.
15) Banque Internationale pour l’Afrique Occidentale—Côte d’Ivoire v. Societe Ivoirienne
de Produits et de Negoce, N° 059/2005, Decision, [C.C.J.A.] (Dec. 22, 2005),
http://www.ohada.com/jurisprudence/ohadata/J-06-36.html.
16) The subject matter jurisdiction (jurisdiction ratione materiae) of the CCJA is limited.
The CCJA does not have jurisdiction to hear criminal cases, even if they are linked to
cases brought before it and it cannot issue penalties. Member States have exclusive
jurisdiction to issue and enforce penal sanctions per domestic criminal laws (see
OHADA Treaty, Articles 5 and 14-3).
17) It can overrule its own prior decisions when there is a clerical error or a
misinterpretation. A clerical error or scrivener’s error is an error resulting from a
minor mistake or inadvertence, in writing or copying something on the record, and
not from judicial reasoning or determination. Black’s Law Dictionary (B.A. Garner ed.,
9th ed., WEST 2009) (Garner, 2009). For example the CCJA corrected a wrong date in a
decision (Côte d’Ivoire Telecom v. Publistar, N° 015/2003, Decision, [C.C.J.A.] (Jul. 1,
2003), http://www.ohada.com/jurisprudence/ohadata/J-04-109.html, and overruled a
decision which wrongfully ordered a winning party to pay costs (Office des Produits
Vivriers du Niger v. Societe Nigerienne de Banque, N° 018/2007, Decision, [C.C.J.A.]
(Apr. 26, 2007), http://www.ohada.com/jurisprudence/ohadata/J-08-235.html). An
example of interpretation of Article 32 of the Uniform Act Organizing Simplified
Recovery Procedures and Enforcement Measures can be seen in (Karnib v. Societe
Generale de Banques en Côte d’Ivoire, N° 002/2001, Decision, [C.C.J.A.] (Oct. 11, 2001),
http://www.ohada.com/jurisprudence/ohadata/J-02-06.html, www.ohada.com,
Ohadata J-02-06), overruled by (Societe d’Exploitation Hôteliere et Immobiliere du
Cameroun v. Societe Generale de banques au Cameroun, N° 012/2003, Decision,
[C.C.J.A.] (Jun. 19, 2003), http://www.ohada.com/jurisprudence/ohadata/J-04-
104.html).
18) This is the case of DRC, which is believed to be the second producer tantalum (coltan)
worldwide, an indispensable mineral for the manufacture of mobiles phones and
some other devices. See Amanda Kay, 5-Top Tantalum-Mining Countries,
https://investingnews.com/daily/resource-investing/critical-metals-
investing/tantalum-investing/2013... [accessed May 8, 2020, at 16:15] (Kay, 2018).
19) DRC is also the first producer of cobalt, another key mineral for the electric
automobile industry, with an estimate of more than 100,000 metric tons produced in
2019. See M. Garside, “Major countries in worldwide cobalt mine production from 2014
to 2019,” https://www.statista.com/statistics/264928/cobalt-mine-production-by-
country/ [accessed May 8, 2020, at 15:58] (Garside, 2020).
20) Mahutodji Jimmy Vital Kodo, Narcisse Aka, The CCJA as a Regional Arbitration
Institution, in The Transformation of Arbitration in Africa: The Role of Arbitral
Institutions, 47-59 (E. Onyema ed., Kluwer Law International 2016) (Kodo Mahutodji
Jimmy Vital, 2016).
21) See Appendix III, infra. At times, arbitration governed by the UAA may be
institutional, especially where it is organized by a national or local arbitration center
of any of the 17 States Parties to the OHADA Treaty.
22) See Appendix I, infra.
23) See Appendix II, infra.
24) OHADA Official Journal, No 8, May 15, 1999, pp. 21-22 (OHADA, 1999).
25) Newsletter, OHADA.com, (Mar. 4, 2010), http://www.ohada.com/newsletter.php?
news=04032010-848# (UNIDA, 2010).
26) Revised version of OHADA Treaty, Art. 42, Oct. 17, 2008.
27) Under Article 42 of the Treaty, all the statutes and some other documents already
published in French are fully enforceable before their translation into English,
Spanish and Portuguese; and where there is a difference between the French version
and one of the other languages, French prevails.
28) Trigon Energy Ltd v. Banque Commerciale du Sahel, N° 031/2011, Decision, [C.C.J.A.],
3e ch., (Dec. 6, 2011), http://www.ohada.com/jurisprudence/ohadata/J-13-167.html.
29) Official Bulletin of OHADA, Nov. 24, 2016,
http://www.ohada.org/index.php/en/component/content/article?id=1848:official-
bulletin-of-ohada-speci... (OHADA, 2016).
30) Martha Simo Tumnde, “OHADA as Experienced in Cameroon: Addressing Areas of
Particular Concern to Common Law Jurists,” in Unified Business Law for Africa: Common
Law Perspectives on OHADA, 2 ed. C. Moore Dickerson (London: GMB Publishing, 2012),
84 (Tumnde, 2012).

5
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 31) The unofficial revised English version of the CCJA Regulation on Arbitration is
available at: https://www.ohada.org/attachments/article/2490/Reglement-
Arbitrage_CCJA-English.pdf; and the UAA is available at:
https://www.ohada.org/attachments/article/2490/Acte-uniforme-Arbitrage-
English.pdf, both links accessed Apr. 9, 2020.
32) For example, the last paragraph (8th) was omitted at Article 26 of the CCJA Regulation
on Arbitration and I added it. See Appendix II, infra.
33) See Appendix II, infra.
34) Gutierrez de Martinez v. Lamagno 515 U.S. 417 (1995),
https://supreme.justia.com/cases/federal/us/515/417/ [accessed May 3, 2020, at
20:40].
35) Jery Payne, “The False imperative,” http://www.ncsl.org/legislators-staff/legislative-
staff/research-editorial-legal-and-committee-staff... [accessed Aug. 6, 2019, at 11:39]
(Payne), citing Bryan A. Garner, Garner on Language and Writing 174-175 (2009) (Garner,
2009). See also the Federal Aviation Administration (FAA), “What’s the Only Word That
Means Mandatory? Here’s What Law and Policy Say about ‘Shall, Will, May, And Must’,”
available at:
https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/
[accessed May 2, 2020], stating that “‘Must’ is the only word that imposes a legal
obligation on your readers to tell them something is mandatory” (Federal Aviation
Administration, s.d.).
36) Under Article 24(1) of the Legislative Drafting Conventions of the Uniform Law
Conference of Canada, “Verbs should appear in the present tense and indicative
mood unless the context requires an exception.” Department of Justice of Canada,
Legistics. Present Indicative, https://canada.justice.gc.ca/eng/rp-pr/csj-sjc/legis-
redact/legistics/p2p3.html [accessed May 3, 2020, at 17:10] (Canada).
37) In 2008, the Constitutional Court of France held that “the use of the present indicative
having imperative value, the substitution of the present of the indicative for a wording
formulated in terms of obligation does not remove their imperative character from
the provisions of the new Labor Code” (Conseil Constitutionnel [CC] [Constitutional
Court] Decision No. 2007-561 DC, Jan. 17, 2008, at No 17, https://www.conseil-
constitutionnel.fr/decision/2008/2007561DC.htm [accessed May 2, 2020, at 16:12]).
[Emphasis added].
38) Ngot v. Dietsman Technologie Internationale, CA Pointe-Noire, Jul. 7, 2005, N° 142,
(Congo), http://www.ohada.com/jurisprudence/ohadata/J-13-127.html. The Court
ruled that:
It follows from the use of the present indicative in Article 170 paragraph 1 of
the Uniform Act Organizing Simplified Recovery Procedures and Measures
of Enforcement (UAOSRPME) in relation to the form in which such
challenges are brought before the competent judge, that these provisions
are mandatory and confer a public order character upon the demurrer
which is established there so that the first judge was bound to raise it ex
officio. By not having done so, he violated the aforementioned Article 170
and Articles 142, 200 of the Code of Civil Commercial Administrative and
Financial Procedure of Congo and the challenged order must be set aside
in all its provisions. [Emphasis added]
39) Woodworth, A. T., & Adams, A. A. (n.d.). Publication Manual of the American
Psychological Association (7th ed., Woodworth & Adams, 2020).

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

6
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Part I: The Arbitration Agreement

The unique chapter of this first part of the book presents the basics of the arbitration
Publication agreement, which is the foundation and starting point of any arbitration proceedings.
Arbitration in Africa under
OHADA Rules

Organization
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Cour Commune de Justice
et d’Arbitrage de Kluwer Arbitration is made available for personal use only. All content is protected by copyright and
l’Organisation pour other intellectual property laws. No part of this service or the information contained herein may be
l’Harmonisation en Afrique reproduced or transmitted in any form or by any means, or used for advertising or promotional
du Droit des Affaires purposes, general distribution, creating new collective works, or for resale, without prior written
permission of the publisher.

Bibliographic reference If you would like to know more about this service, visit www.kluwerarbitration.com or contact our
Sales staff at lrs-sales@wolterskluwer.com or call +31 (0)172 64 1562.
'Part I: The Arbitration
Agreement', in Mahutodji
Jimmy Vital Kodo ,
Arbitration in Africa under
OHADA Rules, (© Kluwer
Law International; Kluwer
Law International 2020) pp.
11 - 12

KluwerArbitration

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 1: Formation, Validity and Legality of Arbitral

Agreements
Publication For arbitration to take place, there must first be a valid arbitration agreement. This
Arbitration in Africa under chapter will present the requirements of the Rules with regard to the parties to an
OHADA Rules arbitration agreement (§1.01), acceptance of the agreement (§1.02), specific conditions
for the validity of the agreement (§1.03), the effects of a valid arbitration agreement
between the parties (§1.04) and finally the specifics of interpretation of arbitration
agreements under the two sets of arbitration available under the OHADA Rules (§1.05).
Organization
Cour Commune de Justice §1.01 PARTIES TO THE ARBITRAL AGREEMENT
et d’Arbitrage de
l’Organisation pour The essential information to be known about the parties to an arbitration agreement will
l’Harmonisation en Afrique be presented in this section for both the UAA (§1.01[A]) and the CCJA Arbitration Rules
du Droit des Affaires (§1.01[B]).

[A] Under the Uniform Act on Arbitration

Bibliographic reference The arbitration agreement may be in the form of either an arbitration clause or a
submission agreement. The arbitration clause is the agreement by which the parties
'Chapter 1: Formation, undertake to submit to arbitration disputes, which may arise or result from a contractual
Validity and Legality of relationship. The submission agreement is the agreement by which the parties to an
Arbitral Agreements', in existing dispute agree to settle it through arbitration. (1)
Mahutodji Jimmy Vital Kodo
, Arbitration in Africa under Article 2 of the UAA states:
OHADA Rules, (© Kluwer
Law International; Kluwer Any natural or legal person may resort to arbitration with respect to any rights
Law International 2020) pp. on which they have the free disposal.
13 - 22
States, other public territorial authorities, public entities and any other legal
person under public law may also be parties to arbitration, regardless of the
legal nature of the contact, without being able to invoke their own law to
object to the arbitrability of a dispute, to their capacity to submit to
arbitration or to the validity of the arbitration agreement. (2)
Under Article 2 above, any type of person enjoying their rights and having legal capacity
can agree to submit to arbitration under the UAA. That provision raises questions as to
who can resort to arbitration, i.e., the types of persons (§1.01[A][1]) and for what type of
disputes (§1.01[A][2]).
[1] Different Types of Persons Who Can Resort to Arbitration under the UAA
Natural persons (§1.01[A][1][i]), as well as States Parties to the Treaty (§1.01[A][1][ii]) can
resort to arbitration under the UAA.
[i] Natural and Legal Persons
In a decision by the Court of Appeal of Abidjan, this rule has been applied to the
representative of a corporation. The Court ruled that the UAA allows any individual or
legal entity to resort to arbitration on the rights to which it has free disposition. It is,
therefore, in vain that the representative of a newspaper raises the nullity of an
arbitration clause in the partnership agreement binding them to the appealing party
since it is the infringement of the rights ceded in that contract that is the cause of the
referral to the Court and the action is also directed against the appealing party in that
capacity. Therefore, national courts must decline jurisdiction and refer the parties to
arbitration, in accordance with their contract. (3)
[ii] States Parties to the Treaty
A State Party to the Treaty cannot invoke its own laws to challenge the validity of an
arbitration agreement signed by its Minister of Finance, since, in the circumstances of the
signing of the agreement, the representatives of the other party could legitimately
believe in the powers of that Minister, who was also the Monetary Authority of that State.
Therefore, the arbitral tribunal was right in considering itself competent to rule on the
dispute by rendering the challenged arbitral award. (4)

[2] Types of Disputes Likely to Be Resolved by Arbitration under the UAA

Contractual disputes (§1.01[A][2][i]) and disputes relating to the employment of some
corporate executives (§1.01[A][2][ii]) will be handled below.

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 [i] Contractual Disputes
The arbitration clause inserted in a contract between two persons who are not traders is
valid because the UAA does not require all parties to be traders. In the presence of such
a clause, state courts do not have jurisdiction for disputes arising from this contract. (5)
[ii] Disputes Relating to the Employment of Corporate Executives
Apart from certain employment contracts of some executives of corporations, most
countries, in general, do not allow employer-employee and all other related disputes to
be submitted to arbitration. In a case involving retired executives of an international
organization claiming some unpaid benefit, a Court of Appeal ruled that in the presence
of an arbitration clause included in the Executive Employment Regulations of the Agency
for Air Navigation Safety in Africa and Madagascar, (6) executives who have retired
without receiving their severance pay are admissible to file a motion before the
competent judge for interim measures (7) for the appointment of an arbitrator. (8)

[B] Under the CCJA Rules

In general, the rules regarding the parties to arbitration under the CCJA Rules are quite
similar to those of the UAA with regards to the parties bound by an arbitration
agreement. Article 9 of the CCJA Regulation on arbitration states:
Where, prima facie, there is no arbitration agreement between the parties
requiring the application of this Regulation on arbitration, if the respondent
objects to the arbitration of the Court or does not file a response within the
thirty (30) days referred to in Article 6 above, the claimant is informed by the
Secretary General that he intends to refer the matter to the Court with a
view to seeing it decide that arbitration cannot take place.
The Court rules in light of the claimant’s comments submitted within the
following thirty (30) days if the latter deems them necessary.
Under exceptional circumstances, an arbitration agreement can be extended to a person
who is not a party to the agreement. The ruling of the CCJA in Compagnie Malienne pour le
Développement des Textiles v. Société Inter Africaine de Distribution provides a good
illustration of this situation. A dispute arose between the claimants, two corporations,
and the respondent, another corporation, about the supply of some herbicides. The
respondent first sued the two claimants before state courts. The claimants declined the
jurisdiction of state courts, alleging there was an arbitration agreement between the
claimants that is applicable to the respondent. The state courts declined jurisdiction,
and after the respondent referred the dispute to arbitration under the CCJA Rules, the
two claimants argued that there was no valid arbitration agreement between them and
the respondent justifying the arbitration proceedings. The CCJA decided that the
arbitration will proceed under its arbitration rules. The arbitral tribunal rendered an
award by which it determined it has no jurisdiction to handle the dispute. By another
decision, the CCJA ruled that the arbitral tribunal did have jurisdiction, and the arbitral
proceedings could resume at the initiative of the most diligent party. Twice, the two
claimants petitioned the CCJA for review of its decision affirming the jurisdiction of the
arbitral tribunal and were unsuccessful. The respondent applied for the resumption of
the arbitration proceedings, and the CCJA appointed a sole arbitrator, who rendered a
final award. The respondent then applied for exequatur of the award and the two
claimants challenged the award, alleging, among other claims, that the award violated
Article 10.3 of the CCJA Regulation on arbitration and was in breach of international
public policy because the arbitrator determined they have jurisdiction on the sole basis
of the ruling of the CCJA mentioned above, instead of ruling on their own jurisdiction
under the competence-competence principle. The Court ruled that:
The claimants, who themselves have inferred that the contract binding them
must be extended to the respondent and for that reason, the dispute must be
referred to arbitration, thereby raising the lack of jurisdiction of the state
judges, which have been enshrined in final and binding decisions of the state
courts, cannot validly challenge the arbitral award for breaching international
public policy in that the arbitral tribunal extended the arbitration clause to
the respondent who was not a signatory of the said clause; plea rejected. (9)

§1.02 ACCEPTANCE OF THE ARBITRATION AGREEMENT

The specifics of acceptance of an arbitration agreement will be presented for the UAA
(§1.02[A]) and the CCJA Rules (§1.02[B]).

[A] Under the UAA

The arbitration agreement is a contract by which the parties entrust the arbitrator with
the mission to settle their dispute, and it must be assessed according to the common will
of the parties. The fact that a party to a dispute did not react to the other party’s

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 proposal on a possible arbitration proves that it did not express its will to conclude the
agreement, and for that reason, it did participate neither in the appointment of the
arbitrator nor in the proceedings. This is particularly so since it appears from the
memorandum of understanding signed by the parties that in the event of a dispute
arising from the contract, they elect domicile with the courts. In the present case, the
arbitration agreement, which was not accepted by all the parties, does not exist and
results in the nullity of the award. (10) Likewise, the annulment of the authentic
instrument, which served as the basis for an arbitral award, entails the annulment of that
award, which no longer has any ground. (11)
It has also been ruled that the willingness to submit a dispute to arbitration must be
clearly expressed in the parties’ agreement. The clause that assigns jurisdiction to the
state judge entails the waiver of the parties to the arbitration, and the order of the judge
appointing an arbitrator under such circumstances must be retracted, at the request of
the most diligent party, for breach of contractual will. (12)

[B] Under the CCJA Rules

Under Etat du Mali v. Société CFAO, (13) the CCJA has set an essential rule to be taken from
Article 9 of the CCJA Rules above, namely that consent to arbitration is not presumed and
in the absence of evidence of the oral consent of the opposing party, the arbitral tribunal
ruled without an arbitration agreement, and its award must be annulled.

§1.03 VALIDITY OF THE ARBITRATION AGREEMENT

Regardless of the UAA of the CCJA Arbitration Rules, as a contract, the arbitration
agreement must meet specific conditions under national laws applicable to contracts,
such as consent and legal capacity, among others. A recurring issue in the arbitration is
the validity of arbitration clauses incorporated by reference. The issue of whether
arbitration clauses incorporated by reference are enforceable or not does not seem to
have been handled under the CCJA Arbitration Rules yet, but it has been under the UAA.
In Atlantique Telecom v. Planor Afrique & Telecel Faso, (14) the CCJA ruled on the issue that:
It is a general principle of law that in international arbitration, the arbitration
clause incorporated by written reference to a document containing it is valid,
even if it is not mentioned in the main agreement, where the party to which
the clause is opposed has had knowledge of the content of this document at
the time of conclusion of the contract and had accepted the incorporation of
the document into the contract. When, as in the present case, a Court of
Appeal, after examining the various transactions between the parties, has
determined with judicial discretion (15) and by a reasoned decision, that the
arbitration clause contained in a shareholders’ agreement is not enforceable
against a party if it appears nowhere in the file that that party was aware of
the said clause and expressed the will to be bound by the arbitration
agreement, the argument against this judgment is devoid of merit and must be
dismissed.
Likewise, it was held, in Roger v. Fofana, that:
An arbitration clause stipulating that “any litigation which could arise from the
interpretation, the execution and the termination of this contract” is binding
as well on the judges of appeal as to the litigants including notably the
defendant in the appeal, which, although not being signatory of the contract
involved, necessarily finds in its object and enforcement the ground of their
real or alleged quality of pursuing creditor or, at the very least, agent …, to
fetch a commission on the market defined by the aforementioned contract.
Thus, by ignoring the arbitration clause, the Court of Appeal, ruling as it did,
set out its decision to be quashed. (16)

§1.04 EFFECTS OF ARBITRATION AGREEMENTS

A valid arbitration agreement is binding for the parties (§1.04[A]) and entails the lack of
jurisdiction of any State court (§1.04[B]).

[A] Mandatory Nature of the Arbitration Agreement on the Parties

In both arbitration systems, (17) parties are bound by their valid arbitration agreement.
Article 10 of the UAA states that parties are “committed to applying the arbitration rules”
of the institution they have referred their dispute to unless they have waived some
provisions of those rules where it is possible. (18)
By agreeing to resort to arbitration under the CCJA Arbitration Rules, (19) parties “submit
ipso facto” (20) to those rules by which they are bound. The mandatory nature of the
arbitration agreement is also emphasized by Article 10.1 of the CCJA Regulation on

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 arbitration, which states that “If one of the parties refuses or abstains from participating
in the arbitration, the arbitration takes place notwithstanding that refusal or abstention.”
(21)

[B] The Lack of Jurisdiction of Courts of Law

The second main consequence of the existence of a valid arbitration agreement is the
lack of jurisdiction of any court to resolve a dispute the parties to a contract have agreed
to refer to arbitration. Applying Article 23 of the Treaty in Sow v. Aka, the CCJA ruled that a
court to which a dispute that the parties have agreed to submit to arbitration has been
referred must decline jurisdiction when one of the parties so requests. Retaining
jurisdiction to uphold the judgment under all of its provisions, on the grounds that the
dispute here relates to the validity and therefore the very existence of the agreement
and not to its application; in these conditions, the arbitration clause, which only operates
in the execution of the agreement, cannot be enforced in the present case; it is,
therefore, right that the first judge retained its jurisdiction, the Court of Appeal has erred
in its application of Articles 23 of the Treaty, and its ruling must be quashed. Upon de
novo review, the CCJA must set aside the judgment undertaken, decline jurisdiction
because of the arbitration clause, and refer the case and the parties to the arbitration
procedure provided for in their agreement. (22)
Similarly, the clause inserted in the articles of association of a company and stipulating
that “for all disputes between the company and the shareholders, their heirs or
representatives resulting from these articles of association, the appeal is submitted to
the arbitration of the International Commercial Chamber” [sic], is well within the scope of
arbitration under Articles 21 and 23 of the Treaty. In the presence of such an arbitration
clause, the state judge had to decline jurisdiction as requested by one of the parties, and
the Court of Appeal was right in affirming the judgment by which the lower court judge
declined jurisdiction. (23)
The CCJA also applies Article 13 of the UAA to enforce the lack of jurisdiction of national
courts in the presence of an arbitral agreement. (24)
However, in some rare cases, courts of law sometimes admit an exception to the lack of
jurisdiction of courts of law in the presence of an arbitration agreement, notably because
of the reckless behavior of a party who hindered the implementation of an arbitration
agreement. In Entreprise Ivoirienne de Construction Bâtiment v. Groupe Eoulee, the CCJA
held that while it is true that party autonomy legally expressed through an arbitration
clause becomes the law for these parties, this autonomy must only be respected if it is
based on the loyalty of the parties who cannot contradict themselves when, by their bad
faith behavior, one of them makes the other party lose confidence. In the case at hand,
the express, certain and unequivocal waiver of the appellant to the application of the
arbitration clause can only be analyzed by a just sanction for the unilateral behavior of
the appellee who has remained indifferent to all the steps taken by the appellant under
the arbitration clause of the contract. Consequently, the waiver of the appellant, based
on the behavior of the appellee, which triggered legal proceedings by the appellant
before the Court of First Instance of Abidjan, must be examined by the judge and not by
the arbitral tribunal. Therefore, the Court of law rightfully retained its jurisdiction. (25)

§1.05 INTERPRETATION OF ARBITRAL AGREEMENTS

The general “competence-competence” principle, by which an arbitral tribunal has
jurisdiction to interpret the arbitration agreement on the basis of which the dispute has
been referred to it, even if the decision of the tribunal on the meaning and the
implications of the arbitration agreement may not be final, (26) is well established under
OHADA rules and generally well enforced by state courts handling cases under the UAA
(§1.05[A]), as well as the CCJA handling cases relating to the two arbitration systems under
OHADA Rules (§1.05[B]). (27)

[A] Under the UAA

Under Société Phondace Sarl v. Société Nationale des Eaux du Sénégal, the Court of Appeal
of Dakar, Senegal ruled that it follows from Article 11 of the UAA that the arbitral tribunal
rules on its own jurisdiction, including all questions relating to the existence or validity of
the arbitration agreement. (28) The same court then went further to specify that “it is
inferred from Articles 2 and 11 of the UAA that the challenge relating to the capacity of a
state-owned corporation (29) to sign an arbitration agreement is within the jurisdiction of
the arbitral tribunal and not of the state court which must decline jurisdiction as soon as
it finds the existence of an arbitration clause or a submission agreement. The judgment of
the lower court, which declined jurisdiction for the benefit of the arbitral tribunal must
be affirmed.” (30)

[B] Under the CCJA Arbitration Rules

The power of an arbitral tribunal to interpret arbitration agreements under the CCJA
arbitration rules is implied through the wording of Articles 10.3, 10.4 and 15.1.b, 5.e 6.b
and 6.d.

4
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 First, Article 10.3 of the CCJA Regulation on arbitration states:
Where one party raises one or more arguments relating to the existence,
validity or scope of the arbitration agreement, the Court, having found prima
facie the existence of this agreement, may decide, without prejudging the
admissibility or the merits of these arguments, that the arbitration will take
place. In this case, it will be up to the arbitral tribunal to make all decisions
on its own jurisdiction. (31)
Where the CCJA, in its administrative capacity, (32) determines prima facie that there is
an arbitration agreement, it decides the arbitration must proceed, and from that
moment, the arbitral tribunal is empowered to make all relevant decisions including on
its jurisdiction. In ruling on its jurisdiction, the arbitral tribunal will inevitably have to
assess the agreement of the parties and some factual circumstances and evidence before
making its determination. That process entails, to some extent, under the circumstances
of each case, an interpretation of the arbitration clause or submission agreement of the
parties. In light of this, the CCJA ruled that a tribunal which determined, on the ground
of a ruling of the CCJA, that it had jurisdiction to resolve a dispute, ruled well on its
jurisdiction in accordance with Article 10.3 of the CCJA Regulation on arbitration which it
did not violate. (33)
Second, Article 10.4 clearly states that:
The arbitral tribunal has exclusive jurisdiction to rule on its own jurisdiction and
on the admissibility of the request for arbitration.
Unless otherwise stipulated, if the arbitral tribunal considers that the
arbitration agreement is valid and the contract binding the parties is null or
nonexistent, the arbitral tribunal is competent to determine the respective
rights of the parties and rule on their claims and submissions. (34)
In order to reach the conclusion that “the arbitration agreement is valid,” the tribunal,
which “has exclusive jurisdiction to rule on its own jurisdiction and on the admissibility of
the request for arbitration,” must interpret the agreement of the parties.
Finally, during the case management conference, which is an important step of the
arbitration proceedings, the arbitral tribunal will have “b) to determine whether an
agreement exists between the parties on the issues listed in Articles 5(e) and 6 (b) and (d) [of
the CCJA Regulation on arbitration]. In the absence of such an agreement, the arbitral
tribunal determines that the award will have to settle this issue.” (35) The issues listed in
articles 5(e), 6 (b) and 6(d) are pertaining to:
– “agreements between the parties on the seat of arbitration, the language
of arbitration, the law applicable to the arbitration agreement, the
arbitration proceedings and the merits of the dispute; in the absence of
such agreements, the wishes of the claimant for arbitration on these
various issues are expressed”; (36)
– b) “confirmation or not of the existence of an arbitration agreement
resulting from a contract or any other instrument between the parties
referring to arbitration under this Regulation”; (37)
– d) “the responses of the respondent on all the issues raised in the
request for arbitration under paragraphs (d) and (e) of Article 5 above.”
(38)
Again, handling all the issues mentioned above will require the arbitral tribunal to do
some interpretation work at some stage of the proceedings as the circumstances may
require.

References
1) UAA, Art. 3-1, para. 1-3.
2) UAA, Art. 2. See the full text in Appendix III, infra.
3) CA Abidjan, Jun. 6, 2005, 1re ch. civ. & com., N° 585 (Ivory Coast),
http://www.ohada.com/jurisprudence/ohadata/J-08-78.html.
4) République de Guinée équatoriale v. Commercial Bank Guinea Equatorial, N°
012/2015, Decision, [C.C.J.A.], 3e ch., (Nov. 29, 2015),
http://www.ohada.com/jurisprudence/ohadata/J-13-142.html.
5) CA Abidjan, Jul. 30, 2002, N° 1032 (Ivory Coast),
http://www.ohada.com/jurisprudence/ohadata/J-03-28.html.

5
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 6) The Agency for Aerial Navigation Safety in Africa and Madagascar (“L’Agence pour la
Sécurité de la Navigation aérienne en Afrique et à Madagascar (ASECNA)”) is an air
traffic control agency based in Dakar, Senegal. It is composed of 18 Member States; 17
African States and France (Benin, Burkina Faso, Cameroon, Central African Republic,
Chad, Comoros, Congo, Ivory Coast, Equatorial Guinea, France, Gabon, Guinea Bissau,
Madagascar, Mali, Mauritania, Niger, Senegal, and Togo). As an international public
organization, it has a special status that allows its staff to submit to arbitration.
7) This refers to the “Juge des référés.” See the glossary & defined terms, supra.
8) CA Abidjan, Jul. 2, 2003, Ord. réf. N° 1435 (Ivory Coast),
http://www.ohada.com/jurisprudence/ohadata/J-04-177.html.
9) Compagnie Malienne pour le Développement des Textiles v. Société Inter Africaine
de Distribution, N° 160/2016, Decision, [C.C.J.A.], Ass. plen., (Dec. 1, 2016),
http://www.ohada.com/jurisprudence/ohadata/J-17-100.html.
10) CA Centre, Sept. 30, 2009, N° 381/Civ., (Cameroon),
http://www.ohada.com/jurisprudence/ohadata/J-10-33.html.
11) CA Littoral, May 16, 2008, N° 060/C., (Cameroon),
http://www.ohada.com/jurisprudence/ohadata/J-19-124.html.
12) TPI Yaounde-Ekounou, May 6, 2013, Ord. N° 185, (Cameroon),
http://www.ohada.com/jurisprudence/ohadata/J-14-125.html.
13) Etat du Mali v. Société CFAO, N° 039/2014, Decision, [C.C.J.A.], Ass. plen., (Apr. 17, 2014),
http://www.ohada.com/jurisprudence/ohadata/J-15-130.html.
14) Atlantique Telecom v. Planor Afrique, N° 041/2010, Decision, [C.C.J.A.], 1st ch., (Jun. 10,
2010), http://www.ohada.com/jurisprudence/ohadata/J-11-85.html.
15) In the original French case, there is a reference to the “pouvoir souverain
d’appréciation du juge,” which is the equivalent of the “judicial discretion” as “A
liberty or privilege allowed to a judge, within the confines of right and justice, but
independent of narrow and unbending rules of positive law, to decide and act in
accordance with what is fair, equitable, and wholesome, as determined upon the
peculiar circumstances of the case, and as discerned by his personal wisdom and
experience, guided by the spirit, principles, and analogies of the law” (Black’s Law
Dictionary Free Online Legal Dictionary (2nd ed.,
https://thelawdictionary.org/discretion/)). For an illustration, see Osborn v. United
States Bank, 9 Wheat 866, 6 L. Ed. 204:
https://www.courtlistener.com/opinion/85451/osborn-v-bank-of-united-states/.
16) Roger v. Fofana, N° 024/2010, Decision, [C.C.J.A.], 2e ch., (Apr. 8, 2010).
17) Arbitration under the UAA and arbitration under the CCJA Arbitration Rules.
18) UAA, Art. 10 para 1.
19) It must be remembered that there is a set of rules governing the institutional
arbitration under the CCJA Rules, as stated supra, in the introduction.
20) CCJA Regulation on arbitration, Art. 10.1.
21) Ibid., Art. 10.2.
22) Sow v. Aka, N° 020/2008, Decision, [C.C.J.A.], 1st ch., (Apr. 24, 2008),
http://www.ohada.com/jurisprudence/ohadata/J-09-46.html.
23) Gomez v. Banque de l’Afrique Occidentale, N° 035/2010, Decision, [C.C.J.A.], 2e ch.,
(Jun. 3, 2010), http://www.ohada.com/jurisprudence/ohadata/J-11-79.html.
24) Resocom v. Financial House, N° 230/2017, Decision, [C.C.J.A.], 3e ch., (Dec. 14, 2017). See
also United Bank of Africa v. Grassfields Holdings Limited, N° 129/2016, Decision,
[C.C.J.A.], 3e ch., (Juil. 7, 2016), where the CCJA ruled, under Art. 13 of the UAA, that in
the presence of an arbitration agreement, the competent judge for interim measures
can order only provisional or protective measures without prejudicing the merits and
any ruling of such judge on the merits must be overturned; Société Générale de
Surveillance v. La République Démocratique du Congo, N° 178/2020, Decision,
[C.C.J.A.], 1e ch., (May 28, 2020).
25) Entreprise Ivoirienne de Construction Bâtiment v. Groupe Eoulee, N° 012/2012,
Decision, [C.C.J.A.], 1e ch., (Mar. 8, 2012). In Transrail v. Canac Senegal, N° 040/2020,
Decision, [C.C.J.A.], 1e ch., (Feb. 13, 2020), it was also held that since contracts result
from the autonomy of the will of parties and must be performed in good faith, the
trust which underpins the recourse to arbitration is undermined when a party to a
chain of contracts is convicted of fraud.
26) Philippe Fouchard, Emmanuel Gaillard & Berthold Goldman, Fouchard, Gaillard,
Goldman on International Arbitration, § 473, 254 (Kluwer Law International, 1999)
(Fouchard, Gaillard, & Goldman, 1999).
27) Namely, the UAA and the CCJA Arbitration Rules, as mentioned in the introduction,
supra.
28) Société Phondace Sarl v. Société Nationale des Eaux du Sénégal, N° n°339, Decision,
CA Dakar, Jul. 7, 2018, unpublished.
29) For the expression translated as a state-owned or public corporation, see the
glossary, infra.
30) Société Phondace Sarl v. Société Nationale des Eaux du Sénégal, N° n°339, supra.
31) CCJA Regulation on arbitration, Art. 10.3.
32) The CCJA acting under Art. 1 and 2 of its Regulation on arbitration as administrative
body supporting the arbitration.

6
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 33) Compagnie Malienne pour le Développement des Textiles v. Société Inter Africaine
de Distribution, N° 160/2016, Decision, [C.C.J.A.], Ass. plen., (Dec. 1, 2016),
http://www.ohada.com/jurisprudence/ohadata/J-17-100.html.
34) CCJA Regulation on arbitration, Art. 10.4. [Emphasis added].
35) Id., Art. 15.1.b.
36) Id., Art. 5.e.
37) CCJA Regulation on arbitration, Art. 6.b.
38) Id., Art. 6.d.

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

7
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 2: Selection, Challenge and Replacement of

Arbitrators
Publication The four main sections of this chapter will deal with the number (§2.01) and selection of
Arbitration in Africa under arbitrators (§2.02), their independence and impartiality (§2.03), as well as their challenge
OHADA Rules and replacement (§2.04).

§2.01 NUMBER OF ARBITRATORS

Organization Under both arbitration systems, an arbitral tribunal can be made up of either a sole
Cour Commune de Justice arbitrator or three arbitrators.
et d’Arbitrage de
l’Organisation pour [A] Under the UAA
l’Harmonisation en Afrique Article 5 of the UAA starts by specifying that “the assignment of an arbitrator can be
du Droit des Affaires performed only by a natural person.” (1) Then it continues by stating that “the arbitral
tribunal is made up of either a sole arbitrator or three arbitrators. In the absence of
agreement between the parties, the arbitral tribunal is made up of a sole arbitrator.” (2)
Bibliographic reference In a UAA-governed arbitration, the parties will need to ensure that the number of
arbitrators they want in a tribunal handling their dispute is specified in their arbitration
'Chapter 2: Selection, agreement, whatever its form (arbitration clause or compromise agreement). Depending
Challenge and on the stakes of the dispute, especially financial, they may want to retain more control in
Replacement of the arbitration process by providing for a three-member tribunal, because their silence
Arbitrators', in Mahutodji would result in the appointment of a single arbitrator.
Jimmy Vital Kodo ,
Arbitration in Africa under One may wonder what would happen where parties would stipulate arbitration by only
OHADA Rules, (© Kluwer two arbitrators? Article 6 paragraph 2 of the UAA states that “where the parties have
Law International; Kluwer agreed to appoint two arbitrators despite the provisions of Article 5, paragraph 2 of
Law International 2020) pp. this Uniform Act, the arbitral tribunal is supplemented by a third arbitrator mutually
25 - 40 chosen by the parties. The same applies in the case of an appointment made necessary
by reason of recusal, incapacity, death, resignation or dismissal of an arbitrator.” (3)
A ruling of the CCJA in Sarci Sarl v. Atlantique Telecom Sa provides an interesting
illustration of the answer. The arbitration clause of the parties stipulated that two
arbitrators were to be appointed, and the arbitrators will have to appoint a third one
only if the first two arbitrators could not agree on an award. The Court of Appeal
determined that that stipulation of the parties, in the context of arbitration by two
arbitrators, is flawed under Article 8 of the UAA, which governs arbitration and is contrary
to the fundamental principle of the obligation to deliberate in an odd number in matters
of justice. Those flaws, according to the Court of Appeal, invalidated the arbitration
clause at issue and prevented the organization of an effective arbitration procedure.
Thus, the Court of Appeal annulled the arbitration clause.
Instead of annulling the arbitration clause, the Court of Appeal should have used its
powers under Article 8 of the UAA [which became Article 5] to appoint a third arbitrator,
and that was the substance of the ruling of the CCJA:
If the parties to an arbitration agreement appoint the arbitrators in an even
number, the composition of the arbitral tribunal may be corrected in
accordance with article 8 [which became Article 5] (4) of the UAA. Where, like
in the present case, the first two arbitrators appointed under the arbitration
clause have supplemented the composition of the arbitral tribunal by
appointing the third arbitrator without waiting for the precondition of their
possible disagreement on a joint award, it is a tribunal of three arbitrators,
not two, which has rendered the award at issue. By annulling the arbitration
agreement, while the competent judge in the State Party has the power, under
Article 8 of the UAA if the matter has been referred to him, to take measures to
ensure that the arbitral tribunal is constituted in accordance with the odd
number rule at paragraph 1 of that Article, the court violated the provisions of
Article 8 of the UAA and its judgment must be quashed. (5)
Where it appears from the challenged award that the respondent served a request for
arbitration to the claimant, informing the claimant at the same time of the arbitrator
that the respondent had chosen and inviting the claimant to appoint their arbitrator
within fifteen days otherwise the appointment would be made by the competent judge;
that in the face of the claimant’s lack of reaction, a judge appointed a second arbitrator
and the two arbitrators chose the third arbitrator; that the registrar of the court notified
the composition of the tribunal thus constituted to the claimant by serving them a writ
and inviting them to participate in the preparatory meeting to be held on a specified
date, the claimant who failed to produce evidence justifying their failure to participate
in the arbitration proceedings cannot rightly raise the breach of adversarial principle
as a defense in that the arbitration sessions were held in their absence. (6)

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 [B] Under the CCJA Arbitration Rules
The CCJA Regulation on arbitration simply states that “the dispute may be settled by an
arbitral tribunal made up of a sole arbitrator or of three arbitrators.” (7) Although the
CCJA Regulation on arbitration does not specify it, like the UAA, only a human being can
be appointed as arbitrator, since no legal entity can perform the mission of arbitrator,
enjoy the rights it entails and be bound by the specific duties that go along with the task.

§2.02 SELECTION OF ARBITRATORS

It will be presented under the UAA (§2.02[A]) as well as the CCJA Rules (§2.02[B]).

[A] Under the UAA

The selection and appointment of arbitrators are governed by Article 6 of the UAA, the
first paragraph of which states that “arbitrators are appointed, dismissed or replaced in
accordance with the parties’ agreement.” Article 6 of the UAA also states in paragraphs 4
to 7:
In the absence of agreement between the parties on the appointment
procedure, or if their stipulations are insufficient:
a) in case of an arbitration with three arbitrators, each party appoints one
arbitrator, and the two arbitrators so appointed choose the third
arbitrator; if a party does not appoint an arbitrator within thirty (30)
days of receiving a request for arbitration from the other party, or if the
two arbitrators fail to agree on the choice of the third arbitrator within
thirty days (30) of their appointment, the appointment is made, upon the
request of a party, by the competent court in the State Party;
b) in case of an arbitration with a sole arbitrator, if the parties cannot agree
on the choice of the arbitrator, the latter is appointed, upon the request
of a party, by the competent court in the State Party.
The decision to appoint an arbitrator by the competent court is made within
fifteen (15) days of referral to the court, unless the laws of a State Party
provides for a shorter time period. This decision is subject to no appeal.
This provision has led to many disputes, and from the available case law, three different
situations regarding the appointment by the parties (§2.02[A][1]), by an arbitration center
(§2.02[A][2]) or by the supporting judge (§2.02[A][3]) will be presented, followed by the
consequences of the irregular appointment of an arbitrator (§2.02[A][4]) and the absence
of an arbitration clause (§2.02[A][5]).
[1] Appointment of Arbitrators by the Parties
By far, the most natural way of appointing arbitrators is by the parties under their own
stipulations. This subsection will tell us how the flawed composition of a tribunal is
handled (§2.02[A][1][i]), answer the question of whether the appointment of an arbitrator
in a submission agreement before a dispute arises is valid (§2.02[A][1][ii]) and emphasize
the preference of the will of the parties in the formation of an arbitral tribunal (§2.02[A][1]
[iii]).
[i] Flawed Composition of the Tribunal
When the thirty-days’ period given to a party to appoint their arbitrator expired on
December 30, 2006, the formal notice given to that party for the purpose of appointing
their arbitrator was not to be issued to them until December 31, 2006, in the case at that
date, they had not made the appointment. The appointment of the second arbitrator by
court order on December 18, 2006, on referral from the other party, before the expiry of
the legal deadline, and the constitution of the ad hoc arbitral tribunal did not comply
with the requirements of Article 5, paragraph 2, a) as to the deadline for appointing the
second arbitrator, (8) and Article 9 as to the equal treatment to be enjoyed by any party
to a trial since one of the parties was unable to exercise their right to appoint an
arbitrator. It follows that the ad hoc arbitral tribunal was improperly constituted, and its
award must be annulled. (9)
[ii] Validity of the Appointment of an Arbitrator in a Submission Agreement Before the
Dispute Arises
The plea alleging the irregularity of the appointment of the sole arbitrator lacks merit
and must be rejected when the parties have expressly and directly designated in the
submission agreement a sole arbitrator in the person of the President of the Commercial
Court of Pointe-Noire, who indeed was the arbitrator that rendered the challenged award.
(10)

[iii] Preference of the Will of the Parties in the Constitution of the Tribunal
The provisions of Article 5 paragraph 1 of the UAA [now Article 6 paragraph 1] according to

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 which “arbitrators are appointed, dismissed or replaced in accordance with the parties’
agreement” enshrine the principle of the pre-eminence of the will of the parties in the
constitution of the arbitral tribunal and the supplementary nature of the provisions of
the UAA. In the presence of contractual stipulations that “the arbitral tribunal will be
composed of three (3) arbitrators, two of which (2) will be appointed by each of the
parties, the third arbitrator being chosen by the two arbitrators previously appointed.
Each party undertakes to appoint its arbitrator within a maximum of fifteen days
following the request for arbitration sent by one of the parties to the other, by registered
letter with acknowledgment of receipt or by any proven means. Failing appointment by a
party of their arbitrator and/or the third arbitrator, the arbitrators will be appointed at
the request of the most diligent party by the president of the Libreville Commercial
Court,” which provide no other than the fifteen-day period given to the respondent to
appoint their arbitrator, and the first two arbitrators appointed to appoint the third, the
claimant has been able to exercise their right to appoint an arbitrator, and no breach of
the equality of the parties in the composition of the said tribunal can be usefully raised,
since the request for arbitration was notified to the defendant on March 06, 2014, and the
order of the supporting judge was made on March 31, 2014, that is after the expiration of
the fifteen (15) day period stipulated. Therefore, the argument lacks merit and will be
rejected. (11)
This case illustrates the importance of a careful drafting of arbitration clauses. The
parties had stipulated a shorter time limit than the thirty days under Article 6 paragraph
5 of the UAA for referring to the supporting judge for the appointment of an arbitrator.
After receiving the notification of the request for arbitration and the appointment of their
arbitrator by the claimant, the respondent, who was relying upon the thirty days under
Article 6 of the UAA, failed to appoint their arbitrator within the fifteen days stipulated
by the parties. In its decision, the CCJA determines that the provision of Article 6
paragraph 5 of the UAA is supplementary in nature and not mandatory; thus, the time
limit freely stipulated by the parties must be enforced, even if it is less advantageous for
the respondent.
[2] Appointment of Arbitrators by an Arbitration Center
This subsection deals with the annulment of an award resulting from the irregular
appointment of an arbitrator (§2.02[A][2][i]) and highlights the mandatory nature of
provisions of the rules of an arbitration center chosen by the parties and not waived by
them (§2.02[A][2][ii]).

[i] Annulment of an Award for Irregular Appointment of an Arbitrator

Where it follows from the submission agreement that the parties have given the power to
the National Chamber of Arbitrations to appoint the President of the arbitral tribunal and
no document has been submitted in the file to establish that the sole arbitrator has been
appointed by the said chamber in the present case, the arbitrator self-proclaimed, thus
exposing their award to annulment, as well as the resulting exequatur. (12)
[ii] Mandatory Nature of the Provision of the Arbitration Rules of the Center Chosen by the
Parties and Not Expressly Waived by Them
Where the parties have agreed to submit any dispute between them to a specific
arbitration center to be settled once for all under the arbitration rules of the center,
without having expressly waived the provisions of said Rules relating to the formation of
the arbitral tribunal, the Court of Appeal was wrong in annulling the challenged award by
finding that “… the [arbitration center] appointed [X.] as President of the arbitral tribunal
in violation of the relevant provisions of Article 5 paragraph 2 a) of the [UAA].” The ruling
of the Court of Appeal must be quashed. (13)
[3] Appointment of Arbitrators by the Supporting Judge
The silence maintained by a party to a dispute in the mail by which the other party
proposed the appointment of an arbitrator not only presumes their refusal but
characterizes the disagreement of the parties on the choice of the arbitrator
necessitating the referral to the supporting judge under the provisions of Article 5 of the
UAA. It follows that the application for the appointment of an arbitrator before the court
is admissible. With regard to the number of arbitrators, it can be inferred from the
submission agreement of the parties, which stipulated that “arbitration chaired by a
jurist under Congolese law will be used” that the parties have opted for a single
arbitrator. This is so because the word “chaired” alone cannot suffice to infer that the
parties have thought of a collegial formation of the arbitral body, one of which would be
the President, since even for a tribunal made up of a single arbitrator or a united judge’s
court, the verb “to chair” can always be used. The supporting judge must appoint the sole
arbitrator, under article 5 above, since the parties failed to appoint it. (14)

[4] Irregular Appointment of Arbitrators: Nullity Without Grievance

The irregular constitution of an arbitral tribunal is a serious matter, and where it is

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 obvious, any court to which the matter is referred must rule solely on the basis of the
UAA, and any ruling on the matter on the ground of a national law contrary to the
provision of the UAA must be overturned. The CCJA affirmed that rule in Le Bistro Family v.
Rosace Marbrée in the following terms:
It was wrong for a court of appeal to hold that “the civil procedure code in its
Article 127 specifies inter alia that no procedural act cannot be declared null
for defect of form if the nullity is not expressly provided for by law,” and that
“better, Article 5 [now 6] of the UAA having provided for no nullity in the event
of noncompliance with the procedure for appointing an arbitrator, such
argument must be rejected since the party relying upon it does not prove the
damage caused to them by this irregularity raised,” to dismiss the objection to
admissibility based on the irregularity of the constitution of the arbitral
tribunal, for failure to comply with the deadlines for the appointment of
arbitrators under Article 5 [now 6] of the UAA. This is so since the national law
on which the court based its decision (Article 127 of the civil procedure code of
Gabon) is not applicable to the present dispute, which is governed solely by
the provisions of the UAA, the irregularity of the composition of the arbitral
tribunal being a ground for challenging an arbitral award under Article 27 [sic]
(15) of the UAA, and that no provision of the said Uniform Act subordinates the
annulment of an award to proof of damage by the party raising the nullity.
Thus, the challenged decision of the Court of Appeal must be quashed for
violation of the rules raised in the argument. (16)
[5] Absence of an Arbitration Clause: Retraction of the Court Order Appointing an Arbitrator
As mentioned before, a court cannot appoint an arbitrator to resolve a dispute where the
parties have waived any preexisting arbitration agreement by a jurisdiction clause. (17)
The exclusive jurisdiction of the “competent court” in the State Party housing the seat of
the arbitration for the appointment of an arbitrator in the event of difficulty has been
maintained, no doubt because the OHADA Legislator has not institutionalized arbitration
governed by the Uniform Act. Indeed, since the UAA does not mandate the creation of
arbitration centers in States Parties and parties to a dispute are not required to use such
a center before implementing an arbitration procedure governed by the Uniform Act, the
appointment of an arbitrator in case of difficulty could only be by court order.

[B] Under the CCJA Arbitration Rules

The selection and appointment of arbitrators under the CCJA arbitration rules are, to
some extent, similar to the one governed by the UAA, with exceptions relating to the
specific nature of the institutional nature of the proceedings governed by the CCJA
arbitration rules. Article 3 of the CCJA Regulation on arbitration covers in detail the
procedure, and it is useful to reproduce it entirely. It states:
3.1 The dispute may be settled by an arbitral tribunal made up of a sole
arbitrator or of three arbitrators.
Where the parties have agreed that the dispute will be settled by a sole
arbitrator, they may appoint them by mutual agreement subject to
confirmation of the Court. If the parties fail to agree within thirty (30) days
from the notification of the request for arbitration to the other party, the
arbitrator is appointed by the Court.
Where three arbitrators have been stipulated, each party, in the request for
arbitration or in the answer to the request, appoints one independent
arbitrator, subject to confirmation of the Court. If one of the parties fails to
appoint an arbitrator, the appointment is made by the Court. The third
arbitrator, who presides over the arbitral tribunal, is appointed by the Court,
unless the parties have agreed that the arbitrators they have appointed would
appoint the third arbitrator within a given time limit. In the latter case, it is up
to the Court to confirm the third arbitrator. If at the end of the deadline set by
the parties or assigned by the Court, the arbitrators appointed by the parties
have failed to agree, the third arbitrator is appointed by the Court.
If the parties have not agreed on the number of arbitrators, the Court appoints
a sole arbitrator, unless the dispute appears to justify the appointment of
three arbitrators. In the latter case, the parties have fifteen (15) days to
appoint the arbitrators.
Where several claimants or respondents are required to submit joint
proposals to the Court for the appointment of an arbitrator and they fail to
agree within the time allowed, the Court may appoint the entire arbitral
tribunal.
3.2 Arbitrators may be chosen from the list of arbitrators drawn up by the
Court and updated annually. The members of the Court cannot be included on
the said list.

4
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 3.3 In appointing arbitrators, the Court may request the opinion of the experts
referred to at Article 1.1, paragraph 6, and considers, in particular, the
nationality of the parties, their place of residence and that of their counsel
and arbitrators, the seat of arbitration, the language of the parties, the nature
of the claims, the availability of the arbitrators and, possibly, the law
applicable to the dispute.
When it must appoint one or more arbitrator(s), the Court proceeds as quickly
as possible, and, unless the parties otherwise agree, according to the following
procedure:
a) the Secretary General sends each of the parties an identical list
prepared by the Court and with at least three names;
b) within a time limit set by the Secretary General, each party return this
list to the Secretary General, indicating on it the names of the arbitrators
by order of preference and, if applicable, crossing out the names to
which it objects;
c) after the expiry of the deadline set by the Secretary General, the Court
appoints the arbitrator or arbitrators on the basis of the names
approved on the lists that have been sent back to him, and in
accordance with the order of preference indicated by the parties.
If for any reason, the appointment cannot be made under this procedure,
the Court may exercise its discretion in appointing one or more
arbitrators.
Some new features introduced with the revised arbitrations rules of the CCJA call for few
comments, i.e., the use of experts by the President of the CCJA in the appointment
process (§2.02[B][1]) and the limitation of the discretion of the CCJA in the appointment
process (§2.02[B][2]).
[1] Use of Experts by the President of the Court
Article 3.3 paragraph 1 completes the procedures for the appointment of an arbitrator by
now providing for the possibility for the Court to seek the opinion of experts when
appointing arbitrators. The methods of implementing this innovation do not seem to
have already been specified, the Arbitration Bylaws of the CCJA in matters of arbitration
not having been reviewed to my knowledge. While we wait, it may be considered that the
possible remuneration of the experts likely to be appointed under Article 1.1 paragraph 6
will be set by the Court, perhaps after consulting the parties as to the financial impact
that these costs, which could be included in the administrative costs of the procedure,
could have.
[2] Limitation of the CCJA’s Discretion in the Appointment of Arbitrators
The revised version of Article 3.3 of the CCJA Regulation on arbitration (which is currently
in force since February 23, 2018) provides for a procedure under which the Court
preselects three or more names that are communicated to the parties. Each party must
indicate within a time limit set by the Secretary-General their preferences for the list
drawn up by the Court, crossing out any undesirable names and indicating, if applicable,
the names of the persons they want to see appointed in order of preference. If the parties
take advantage of this new possibility which they are offered, the hands of the Court may
appear to be tied with the preselection, which will have been made for the final
designation, and the Court will not be able to proceed otherwise than in the event of
difficulty. This process, which gives more freedom to the parties and their counsel to the
detriment of the Court in the choice of an arbitrator might seem restrictive of the
discretion of the Court which would become, under such circumstances, a simple selector
of arbitrators. Its “conservative” nature may also contribute to the limitation of the
progress—if any—toward genuine diversity in the appointment of arbitrators, as
highlighted by Emmanuel Gaillard: (18)
This system is the most conservative there is. As the parties abhor the
unknown, the new names likely to be proposed by [the arbitration center] will
most often be discarded or misclassified by either party, making this
system a machine to reproduce what already exists. Without the parties being
suspected of bad intentions, if the existing lacks diversity—which is the case—
it will nevertheless be reproduced by the mechanical play of this mode of
appointment.
In any event, any party wishing to maintain the old system of appointment by the Court
(no preselection to be submitted to the parties) should ensure that this is stipulated in
the arbitration agreement, within the boundaries of the rules.
It must also be noted that the OHADA Legislator added elements to be considered for the
appointment of arbitrators by the Court, in particular the seat of arbitration, the
availability of prospective arbitrators and the law applicable to the dispute. Taking
availability into account when appointing an arbitrator can help speed up proceedings if
it avoids appointing arbitrators who are already overloaded with work and or cases.

5
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 §2.03 INDEPENDENCE AND IMPARTIALITY OF ARBITRATORS
Independence and impartiality will be presented under the UAA (§2.03[A]) and the CCJA
Rules (§2.03[B]).

[A] Under the UAA

Under Article 7 paragraph 3 of the UAA, “the arbitrator must enjoy full exercise of their
civil rights and remain independent and impartial toward the parties” (emphasis added).
Like any other human activity implying the act of judging, independence and impartiality
of the person(s) in the position to judge is the backbone. Independence of arbitrators is
so crucial that the Legislator mandates that they remain independent and impartial
throughout the proceedings and must disclose “any circumstance likely to create in [the
minds of the parties] a legitimate doubt about their independence and impartiality” (19)
before accepting their appointment and at any stage of the procedure should such
circumstances arise. (20) The requirement that arbitrators enjoy full exercise of their
rights reinforces their independence toward the parties.
There is at least one case of the CCJA relating to the lack of independence of an arbitrator
who seemed to have had undisclosed ties with counsel of a party. The Court ruled that
the arbitral tribunal is regular only if it is composed of independent and impartial
arbitrators and if the procedure for its constitution is exempt from any defect. The formal
inquiry of the arbitral tribunal on the nature of the collaborative ties that the arbitrator
appointed by the claimant in the arbitration proceedings had with the counsel of the
claimant having received no response enabling the assessment of the impact of these
undisclosed ties on their independence and impartiality, it is by a correct application of
Articles 7 and 26 of the UAA that the Court of Appeal determined “that it is settled case
law that the arbitrator must disclose any circumstance likely to affect their judgment and
to provoke in the minds of the parties a reasonable doubt on their impartiality and
independence which are the essence of the arbitral function,” to set aside the award. (21)

[B] Under the CCJA Arbitration Rules

The requirements of independence and impartiality from arbitrators involved in
proceedings governed by the CCJA Arbitration Rules are quite similar to those of the UAA.
Article 4.1 of the CCJA Regulation on arbitration states, in this regard:
4.1 Any arbitrator appointed or confirmed by the Court must be and remain
impartial and independent to the parties.
…
Before their appointment or confirmation by the Court, the prospective
arbitrator must disclose in writing to the Secretary General any circumstances
likely to raise legitimate doubts about the arbitrator’s impartiality or
independence.
Upon receipt of this information, the Secretary General communicates it in
writing to the parties and sets a time limit for them to present their respective
comments.
The arbitrator must immediately disclose, in writing to the Secretary General
and the parties, any similar circumstances which may occur between their
appointment or confirmation by the Court and the notification of the final
award. (22)
At least in one case, Etat du Niger v. Société Africard Co Limited, the CCJA enforced the
independence and impartiality rule, by ruling that “under Article 4.1 of [its] Regulation on
arbitration, any arbitrator appointed by the [CCJA] must be and remain independent
from the parties.” (23)

§2.04 PROCEDURES FOR CHALLENGING AND REPLACING ARBITRATORS

The procedure for challenge and replacement will be presented under both systems as
well.

[A] Under the UAA

Arbitrators can be “dismissed or replaced in accordance with the parties’ agreement,”
(24) and where applicable, the rules of any local arbitration center that might be
organizing the proceedings, as long as no provisions of such rules are contrary to the UAA.
(25) The challenge and replacement of arbitrators are governed by article 8 of the UAA;
the first four paragraphs deal with the challenge (§2.04[A][1]) and the last one with the
replacement of an arbitrator (§2.04[A][2]).
[1] Challenge of an Arbitrator
Article 8, paragraph 1-4 of the UAA states:
In the event of dispute, and if the parties have not agreed on the procedure for

6
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 challenging an arbitrator, the competent court in the State Party rules on the
challenge, no later than thirty (30) days after the parties and the arbitrator
have been heard or duly summoned. If the competent court fails to rule within
the abovementioned time period, the challenge is removed from that court
and may be brought before the CCJA by the most diligent party.
The decision of the competent court dismissing the challenge may be
challenged only before the Common Court of Justice and Arbitration.
Any ground for challenge must be raised, no later than thirty (30) days from the
discovery of the fact that led to the challenge, by the party seeking to invoke
it.
The challenge of an arbitrator is admissible only for a reason disclosed after
their appointment. (26)
Parties have latitude in determining the procedure for challenging an arbitrator, and only
if there is no agreement on that issue will “the competent court in the State Party,” in
other words, the supporting judge, rule on the challenge. For ad hoc cases, parties will
need to have carefully provided for the situation, should it arise. In institutional
arbitrations, the rules of the arbitration centers involved may have a supplemental role
to play as long as their provisions are in compliance with the UAA.
The Legislator promotes speed by locking up the recusal within a time frame. Any request
for recusal must be raised, within thirty days of the discovery of the cause justifying it,
before the competent court of the seat of arbitration, which must rule within the same
period, beyond which the challenge may be referred to the CCJA if the national court has
not ruled. These provisions preserve procedural public order by allowing parties to assert
their legitimate grounds for the challenge while limiting the risk of delaying tactics that
may involve transforming the recusal procedure into a “judicial marathon” in itself.
[2] Replacement of an Arbitrator
On the replacement of arbitrators, the fifth and last paragraph of Article 8 of the UAA
states:
When the mission of an arbitrator is terminated, or when they resign for any
other reason, a replacing arbitrator is appointed according to the applicable
rules to the appointment of the replaced arbitrator, unless otherwise agreed
by the parties. The same procedure is followed if the arbitrator’s mission is
terminated by mutual agreement of the parties and in any other case when
their mission is terminated.

One will note, in paragraph 5 of the amended Article 8 above, the flexibility of the
Legislator, allowing the parties to stipulate a different procedure for the appointment of
a new arbitrator where replacement is needed. The parties may thus provide in their
arbitration agreement for the possibility of having the replacing arbitrator appointed by
an arbitration center of the State in which the arbitration takes place.

[B] Under the CCJA Arbitration Rules

The challenge and replacement of arbitrators are governed by Article 4 of the CCJA
Regulation on arbitration. Article 4.2 deals with the challenge (§2.04[B][1]), while articles
4.3 and 4.4 handle replacement (§2.04[B][2]).
[1] Challenge of an Arbitrator
Article 4.2 of the CCJA Regulation on arbitration states:
4.2 The application for recusal of an arbitrator based on alleged lack of
independence or any other ground is made by submission to the Secretary
General of a written statement specifying the facts and circumstances on
which the application is based.
To be admissible, the application must be sent by a party either within thirty
(30) days of the party receiving notification of the appointment or
confirmation of the arbitrator by the Court, or within thirty (30) days from the
date on which the party filing the application for recusal has been informed of
the facts and circumstances on which the application for recusal is based if
that date is after the receipt of the above notification.
The Court rules on admissibility of the application at the same time as, if
necessary, on the merits of the application for recusal, after the Secretary
General has given an opportunity for the arbitrator concerned, the parties and
other members of the arbitral tribunal, if any, to present their written
submissions within an appropriate time frame. These written comments are
sent to the other parties and members of the arbitral tribunal.
No case handling challenge issues has been available; the first four paragraphs of Article

7
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 4.2 above deal with the challenge and the last one with the replacement of an arbitrator.
[2] Replacement of an Arbitrator
Replacement of an arbitrator under the CCJA Arbitration Rules is governed essentially by
Articles 4.3 and 4.4 of the CCJA Regulation on arbitration. Here again, there is no case
available yet, and the full content of those provisions will be reproduced hereafter, for
the reader’s attention:
4.3 An arbitrator must be replaced upon death, upon acceptance by the Court
of the application for recusal of the arbitrator, or upon acceptance by the Court
of the resignation of the arbitrator.

Where the resignation of an arbitrator is not accepted by the Court and the
arbitrator nevertheless refuses to continue to perform their mission, the
arbitrator must be replaced if the arbitrator is a sole arbitrator or the
Chairman of the arbitral tribunal.
In the other cases, the Court assesses whether there is a need for replacement
taking into account the state of progress of the proceedings and the opinion of
the two arbitrators who have not resigned. If the Court considers that there is no
need for replacement, the proceedings continue and the award is rendered
despite the refusal of the arbitrator whose resignation has been refused.
The Court makes its decision in light of, among other things, the provisions of
Article 28 (2) of this Regulation.
4.4 An arbitrator must also be replaced when the Court finds that the arbitrator
is de jure or de facto prevented from carrying out their mission or that the
arbitrator is not performing their duties in accordance with Title IV of the Treaty
or with this Regulation, or within the prescribed time limits.
When, on the basis of information that has come to its knowledge, the Court
considers applying the preceding paragraph, it decides on the replacement
after the Secretary General has communicated this information in writing to
the arbitrator concerned, the parties and to the other members of the tribunal,
if any, and has given them the opportunity to comment in writing within an
appropriate time frame.
In the event of the replacement of an arbitrator who does not perform their
duties in accordance with Title IV of the Treaty, this Regulation on Arbitration,
or within the allotted time, a new arbitrator is appointed by the Court on the
advice of the party who had appointed the arbitrator to be replaced without
the Court being bound by the said opinion.
Where the Court is informed that, in a three-member tribunal, one of the
arbitrators other than the president, does not participate in the arbitration,
without having resigned, the Court may, pursuant to Article 4., paragraphs 3
and 4 above, not replace the said arbitrator if the two other arbitrators agree
to continue the arbitration despite the failure of the said arbitrator to
participate.
The last three paragraphs of Article 4 of the CCJA Regulation on arbitration cover
respectively the terms under which arbitration proceedings are resumed after the
challenge and replacement are settled, (27) warrant fair proceedings by requiring the
secretary-general to allow parties and arbitrators to submit their written comments on
the challenge and replacement, if any, to all the other parties and members of the
tribunal, (28) and finally indicates that the rulings of the CCJA on the appointment,
confirmation, challenge and replacement of arbitrators are final. (29)
The final and binding nature of such decisions rendered by the restricted commission of
the Court (30) acting in its administrative capacity has been affirmed by the Court in
Ekwa Ngalle v. Société Nationale d’Hydrocarbures, where it ruled that under Article 4 of
the CCJA Regulation on arbitration, governing institutional arbitrations under the aegis
of that Court, the decision confirming, removing or replacing an arbitrator rests with the
Court and is final. Therefore, the arbitral tribunal, established under the aegis of the CCJA,
which has declared itself incompetent to assess an application for recusal of an
arbitrator and has merely taken note of the decision of the Court confirming that
arbitrator has not violated the Regulation on arbitration. The petition for annulment of
the award for breach of the principle of independence and impartiality of an arbitrator
must, therefore, be dismissed as lacking merit. (31)
The procedures for challenging and replacing an arbitration are quite straightforward
and must be followed strictly for the party relying upon them to be successful.

8
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 References
1) UAA, Art. 5, para. 1.
2) Id., Art. 5, para. 2.
3) Id., Art. 6 para. 2. [Emphasis added].
4) The ruling has been made under Article 8 of the UAA before the enactment of the
revised version of November 2017 which turned Art. 8 into Art. 5.
5) Sarci Sarl v. Atlantique Telecom Sa, N° 044/2008, Decision, [C.C.J.A.], 1e ch., (Jul. 17,
2008), http://www.ohada.com/jurisprudence/ohadata/J-10-15.html.
6) CA Littoral, Apr. 28, 2010, N° 199/Civ., (Cameroon),
http://www.ohada.com/jurisprudence/ohadata/J-12-73.html.
7) CCJA Regulation on Arbitration, Art. 3.1.
8) This ruling was made under Art. 5, para. 2, a) of the UAA of Mar. 11, 1999, which has
become Art. 6 para. 5 since the enactment of the UAA of Nov. 23, 2017 which is
currently in force.
9) Sarci Sarl v. Atlantique Telecom, N° 044/2008, supra, Chapter 2, fn. 5.
10) CA Pointe-Noire, Mar. 4, 2005, (Congo),
http://www.ohada.com/jurisprudence/ohadata/J-13-73.html.
11) Le Bistro Family v. Rosace Marbrée, N° 196/2018, Decision, [C.C.J.A.], 2e ch., (Oct. 25,
2018).
12) CA Ouest, Jul. 13, 2011, N° 53/CIV., (Cameroon),
http://www.ohada.com/jurisprudence/ohadata/J-12-64.html.
13) Commercial Bank of Cameroon v. Archidiocèse de Yaoundé, N° 242/2018, Decision,
[C.C.J.A.], 2e ch., (Nov. 29, 2018).
14) T. com. Pointe-Noire, Jan. 8, 2002, Ord. réf. n° 007, (Congo),
http://www.ohada.com/jurisprudence/ohadata/J-13-70.html.
15) There seems to be a typographical error in the ruling of the Court, because Art. 26 of
the UAA, and not 27, deals with the grounds of annulment of an award.
16) Le Bistro Family v. Rosace Marbrée, N° 196/2018, supra, Chapter 2, fn. 11.
17) TPI Yaounde-Ekounou, May 6, 2013, Ord. N° 185, supra, Chapter 1, fn. 12.
18) Emmanuel Gaillard, “Nouvelles Réflexions sur la Sociologie de l’Arbitrage,”
Procédures, N°2, February 2020, p. 36 (Gaillard, 2020).
19) UAA, Art. 7 para. 4.
20) Id., Art. 7 para. 5.
21) Wanmo v. Nguessi, N° 151/2017, Decision, [C.C.J.A.], 2e ch., (Jun. 29, 2017).
22) CCJA Regulation on arbitration, Art. 4.1 (Emphasis added).
23) Etat du Niger v. Société Africard Co Limited, N° 087/2018, Decision, [C.C.J.A.], Ass.
plen., (Apr. 12, 2018).
24) UAA, Art. 6 para. 1.
25) On the necessity of compliance of the rules of any local, national or regional
arbitration center with the UAA, see supra, Introduction, fn. 10.
26) Emphasis added.
27) CCJA Regulation on Arbitration, Art. 4.5.
28) Id., Art. 4.6 para. 1.
29) Id., Art. 4.6 para. 2.
30) The restricted commissions of the CCJA are usually selections of three judges of the
CCJA appointed by the President and Vice Presidents to serve on a rolling basis.
31) Ekwa Ngalle v. Société Nationale d’Hydrocarbures, N° 102/2015, Decision, [C.C.J.A.],
Ass. plen., (Oct. 15, 2015), http://www.ohada.com/jurisprudence/ohadata/J-16-
95.html.

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

9
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 3: Rights and Duties of Arbitrators

The present chapter is important, essentially because it lays down the substantial
Publication obligations of arbitrator(s) toward the parties as well as the arbitration(s) center(s) that
might be involved in the arbitral process. Those obligations will also be used at a later
Arbitration in Africa under stage to assess whether a tribunal has diligently carried out its mission, especially where
OHADA Rules the award is challenged. The arbitrator’s contract (§3.01) and the status it confers upon
arbitrators (§3.02) will be presented before the rights of the appointed arbitrators (§3.03),
followed by the obligations of the arbitrator(s) (§3.04), the specific role of the presiding
Organization arbitrator for panels of three ((§3.05) and choice of law governing the obligations, rights
and protections of the arbitrator(s) (§3.06).
Cour Commune de Justice
et d’Arbitrage de §3.01 THE ARBITRATOR’S CONTRACT
l’Organisation pour
l’Harmonisation en Afrique Under OHADA Rules, regardless of whether the UAA or the CCJA arbitration rules apply, the
du Droit des Affaires appointment and confirmation, where applicable, of arbitrator(s) entails the formation of
a contract.
Where the parties have chosen ad hoc arbitration, which is possible only under the UAA,
Bibliographic reference the terms of reference signed between the parties and the arbitrator(s) would generally
'Chapter 3: Rights and stand for the “arbitrator’s contract” because it is the document containing the terms and
Duties of Arbitrators', in conditions expressing the duties and rights of the respective parties. Depending on the
Mahutodji Jimmy Vital Kodo circumstances, those terms usually cover the details of the mission of the tribunal such as
, Arbitration in Africa under issues to be resolved, applicable law(s), whether the tribunal may rule as amiable
OHADA Rules, (© Kluwer compositeur or not, the acceptance of the arbitrator(s) of their mission, the duration of
Law International; Kluwer the proceedings if different from the one provided by the applicable law, the procedural
Law International 2020) pp. calendar, the amount of provisions on fees and costs as well as their method of
41 - 54 calculation. Those terms also organize the way in which the accounts will be kept and
designate the person who will manage them, and some other important issues parties
and arbitrators may have agreed upon.

The choice by the parties of institutional arbitration under the aegis of an arbitration
center or institution considerably simplifies the task of arbitrator(s) since the
commitments to which the parties, as well as arbitrators, subscribe by their acceptance
of the arbitration contract, are generally found in the rules of the chosen arbitration
center. Thus, the arbitrator’s contract under institutional arbitration governed by the UAA
will be formed of the provisions of the UAA itself, the arbitrations rules of the center
chosen and any other rule(s) chosen either by the parties or the arbitral tribunal to
supplement that first set of rules where necessary. (1)
Under the CCJA Rules, the arbitrator’s contract is formed by the signature, by each
arbitrator, of a set of documents including the formal acceptance of the mission (2) and
the minutes of the case management conference. (3)

§3.02 STATUS
The status of an arbitrator, or a tribunal where three arbitrators are operating, deals with
the legal regime of the arbitrator(s) with regard to the arbitrator’s contract mentioned
supra. Like under UK law, as highlighted in Jivraj v. Hashwani, the arbitrator’s contract is
definitively not an employment contract, (4) nor is it an agency contract, as in French law.
(5) An arbitrator is neither an employee nor an agent of the party who appointed them.
Therefore, that party or the parties have no control over the tribunal. The arbitrator’s
contract is a special contract.

§3.03 RIGHTS AND PROTECTIONS OF ARBITRATORS

The essential right of arbitrator(s) is their entitlement to compensation for their
performance (§3.03[A]), and under certain arbitration Rules such as the ones of the CCJA,
the arbitrators are protected by judicial immunity (§3.03[B]).

[A] Remuneration of Arbitrators

The specifics of remuneration under the UAA (§3.03[A][1]), as well as the CCJA Rules
(§3.03[A][2]), will be presented.
[1] Under the UAA
In arbitration proceedings under the UAA, governed by the AAU, fees are freely agreed
between the parties and the arbitrator(s) unless, as Article 10 allows, arbitration is
organized and administered by a national or local arbitration center, in which case the

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 parties will submit to its provisions. In that case, a prospective arbitrator may agree with
the parties to apply a tariff similar to or proportionate to that which takes place in other
arbitration centers or even provide for ad valorem pricing unless unauthorized under the
mandatory provision of applicable rules of the chosen center.
[2] Under the CCJA Arbitration Rules
Under the CCJA Arbitration Rules, a schedule setting ad valorem fees is provided for by a
prescriptive decision of the CCJA, (6) which constitutes an appendix to its Regulation on
Arbitration. The fees are set exclusively by the Court (in its administrative capacity
handling arbitration proceedings) on the basis of this schedule, and any separate
agreement between the arbitrators and the parties to this effect is null and void. (7) This
mandatory rule has been enforced in Republique de Guinee v. Getma International, (8)
where the CCJA annulled an award rendered under its Arbitration Rules between the
Republic of Guinea and Getma International, a foreign corporation, for the failure of the
arbitral tribunal to comply with the mission entrusted to it. A later attempt to enforce the
annulled award in the United States on the ground of the New York Convention was
denied by the United States District Court for the District of Columbia on June 9, 2016, (9)
and the refusal was affirmed by the United States Court of Appeal for the District of
Columbia Circuit on July 7, 2017. (10)
This fee schedule is often criticized because of the level of remuneration it grants to
arbitrators, which seems to be below the rates applied by most international arbitration
institutions and which seems to grant a disproportionate percentage of the value at stake
in each dispute as costs to the CCJA Arbitration Center, compared to the fees awarded
to arbitrators. But in any event and pending a possible revision of the fee schedule, it
should be noted that “If the circumstances of the case make it exceptionally necessary,
the Court may, at its own initiative or upon a reasoned request of the arbitrator, fix the
fees of the arbitrator at an amount greater or lower than the one that would result from
the application of the schedule of fees.” (11)

[B] Immunity of Arbitrators under the CCJA Arbitration Rules

The issue of liability of arbitrators does not seem to be addressed often. The Treaty
seems too protective of arbitrators as its Article 49, states:
Under the conditions determined by a Regulation, OHADA officials and
employees, judges of the Common Court of Justice and Arbitration, and
arbitrators appointed or confirmed by the CCJA enjoy diplomatic privileges and
immunities in the performance of their duties.
The immunities and privileges mentioned above may, depending on the
circumstances, be waived by the Council of Ministers. [Emphasis added].
Such immunity has been bestowed upon the arbitrators appointed or confirmed by the
CCJA to allow them to perform their duties with no worry of being sued. However, that
protective fence enjoyable by arbitrators may become a source of frustration and
damages to the parties in some cases of arbitrators’ misconduct, for example, where they
do not deliver the award within the imparted time or do it with a delay of years as was
the case in Flock v. Beatie, (12) a Canadian case. In that case, an arbitrator who was
supposed to render an award within sixty days rendered the award 33 months later, and
yet the Court held that the arbitrator “is protected by arbitral immunity from suit in tort
and in the contract. There is no basis to suggest [the arbitrator] acted fraudulently or in
bad faith such as to displace his arbitral immunity.” (13)
In institutional arbitration governed by the CCJA Arbitration Rules, the core solution
would have been the same under Article 49 of the Treaty. However, the right of the
arbitrators to be protected during their service and the right of the parties should be
balanced, and it should be possible to sanction an arbitrator’s misconduct, as was the
case with a former President of the Chartered Institute of Arbitrators who has reportedly
been “expelled from the Institute and ordered to pay £3,000 in costs for failing to deliver
an award for four years.” (14)

Many scholars from different jurisdictions have criticized court rulings giving absolute
immunity to arbitrators. Commenting on Howard v. Drapkin, (15) Robert M. Carroll wrote
that “by giving arbitrators absolute immunity, the court has taken away part of the
arbitrator’s incentive to be totally impartial and has replaced it with the ability to assert
one party’s claim over the other’s. This result has created a policy of protecting biased
arbitrators while discouraging the use of arbitration as an impartial dispute resolution
alternative.” (16) Mark Sponseller, another author, wrote on the topic:
As arbitration becomes more of a profession than a part-time voluntary
service to an individual’s trade or profession, arguments advocating
professional accountability become stronger. Few would contend that
potential lawyers, doctors, or accountants are deterred from entering their
chosen profession because of the possibility that they may be held liable for
their misconduct. Therefore, the argument that potential liability for

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 misconduct will hamper the availability of arbitration is becoming
increasingly invalid. While imposing potential liability may speed this
professionalization by increasing the need for malpractice insurance,
increased professionalism and accountability is not an undesirable outcome.
(17)
Emmanuela Truly, another author, raised additional arguments against absolute
arbitrator’s immunity:
To the arbitrators the land of no sanctions can mean that they may attract all
kind of appointing parties, especially those willing to use unethical means to
win their case. The danger is thus that the arbitrators willing to act unethically
will receive ample appointments, while remaining free from sanctions,
whereas those participants who refuse to do so, will not be appointed. It can
thus be argued that absolute immunity drives all participants in the
arbitration procedure to a “race to the bottom,” diminishing the professional
standards that ensure the quality of the awards rendered. (18)
In other legal systems, arbitrators may be punished for misconduct under certain
conditions, (19) and there seems to be a trend toward a possible arbitrator liability for
deliberate wrongdoing in several jurisdictions. (20) Thus, it is regrettable that the recent
revision of some of the arbitration rules of the CCJA did not include this. It would have
been appropriate to amend the applicable rules to the CCJA arbitration by stating that
an arbitrator is not liable for any act or omission during or linked to the performance of
his arbitral duties unless it is proven that the act or omission has been done in bad faith.
Some other countries, such as South Africa, have included similar provisions in their
recently amended arbitration Act. (21) Liability without fault regime could also be
organized and be coupled with and insurance mechanism set by a minor percentage of
the fees of each proceeding; this would allow compensation to be paid to parties in some
cases where there would be liability without fault.
However, it seems possible to seek the responsibility of an arbitrator in the event of gross
negligence, miscarriage of justice, or fraud, like under French law (22) since the CCJA itself
has already ruled, in Djoumessap Motsebo v. The OHADA Permanent Secretary that the
immunity under Article 49 of the Treaty is relative and not absolute. (23)

§3.04 OBLIGATIONS OF AN ARBITRATOR

At least eight essential obligations emerge from the rules governing arbitration under
both systems (under the UAA and under the CCJA Arbitration Rules). Because they are
quite similar in nature, they will be presented together with an emphasis on differences
of a regime where applicable. These are the obligation to accept the appointment in
writing (§3.04[A]), to perform the mission until the end (§3.04[B]), to enjoy their civil rights
(§3.04[C]), to remain independent and impartial toward the parties (§3.04[D]), to act
diligently and swiftly (§3.04[E]), to inform the parties (§3.04[F]), to stay the proceedings
and refer the parties to a stipulated preliminary step omitted by the parties (§3.04[G])
and the obligation to give a fair and equal treatment the parties (§3.04[H]).

[A] Obligation to Accept the Appointment in Writing

Article 7 paragraph 1 of the UAA states that “The arbitrator who accepts their mission
must communicate their acceptance to the parties by any means in writing.” The
formulation may appear redundant since in virtually all cases, acceptance is
materialized by a signed document, and that could be the reason why no such provision
exists in the CCJA Arbitration Rules, even though acceptance of appointment is inevitably
materialized by documents signed by the arbitrator, namely the formal acceptance of
the mission which is part of the arbitrator’s contract. (24)

[B] Obligation to Perform the Mission until the End

Under the UAA, an arbitrator, upon acceptance of their mission, “undertakes to continue
their mission until the end, unless they justify of an impediment or legitimate reason for
abstention or resignation.” (25) Under the CCJA Rules, the same obligation exists and is
phrased differently: “The arbitrator must perform their mission to its end with diligence
and swiftness.” (26)

[C] Obligation to Enjoy Their Rights

Under the UAA, an arbitrator “must enjoy full exercise of their civil rights … .” (27) Here
again, there is no specific provision of the CCJA Rules requiring an arbitrator to enjoy their
civil rights in order to be fit to serve as an arbitrator, but the duty is implied, and
someone who does not enjoy their civil rights cannot serve as arbitrator.

[D] Obligation to Remain Independent and Impartial Toward the Parties

Under the UAA, an arbitrator must remain independent and impartial toward the parties.
(28) Under the CCJA Rules, “any arbitrator appointed or confirmed by the Court must be
and remain impartial and independent to the parties.” (29) The assertion of the duty of

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 impartiality of the arbitral tribunal recalls the obligation, for the tribunal, to have no
bias or not to be influenced in favor of a party by extrinsic elements on the merits of the
dispute as they result from adversarial hearings relating to the evidence regularly
produced by the parties. Comparative case law also includes illustrations of the
partiality or impartiality of arbitral tribunals likely to guide the path of litigants and the
CCJA in assessing situations characterizing the impartiality of an arbitral tribunal.
It is the first time that these three concepts of impartiality, diligence and swiftness are
asserted as such in the CCJA Arbitration Rules, but impartiality and swiftness are not
foreign to the legal order of the OHADA Member States since they are provided for by the
African Charter on Human Rights, the principles of which, asserted by case law, are
required in all States parties to the Treaty. Indeed, the right to a fair trial, universally
recognized in various legal systems around the world, (30) is asserted under Article 7 of
the African Charter on Human and Peoples’ Rights, (31) which expressly recognizes “the
right to be judged within a reasonable time by an impartial court.” This right has been
asserted several times by the Community Court of Justice of the Economic Community of
West African States, ruling in matters of Human Rights (CJ ECOWAS), (32) which preceded
the African Court of Human Rights (ACHR), now competent in the matter.

[E] Obligation to Act Diligently and Swiftly

Article 4.1, paragraph 2 of the CCJA Regulation on Arbitration subjects arbitrators to an
obligation of diligence and swiftness, by stating that “the arbitrator must perform their
mission to its end with diligence and swiftness.” Swiftness, which includes the idea of
“Speed, promptness in execution,” reminds the arbitrator(s) that the parties expect,
above all, the arbitral tribunal to resolve the dispute submitted to it quickly, without
however botching the work. Until the OHADA case law specifies the contours of the
concept of “swiftness,” we can learn from comparative and transposable law case law, for
example, that a tribunal has the duty to resolve the dispute with reasonable speed
avoiding useless measures. (33)

[F] Obligation to Inform the Parties

Under both arbitration systems, there is an obligation upon arbitrator(s) to inform the
parties and, where applicable, secretary-general of arbitration centers, of any facts,
circumstances, situation that may raise doubts in the mind of the parties on the
independence or impartiality of an arbitrator. The duty to inform exists at the onset of
the proceedings and throughout them. In other words, before accepting appointment, an
arbitrator must ensure there is no reason for any party involved to have doubts about the
independence of the prospective arbitrator; once appointed and confirmed, where
applicable, the arbitrator is under the obligation to reveal any similar fact or
circumstances that may arise or come to their knowledge during the proceedings.
Under the UAA, Article 7 paragraphs 3 and 4 states:
Any potential arbitrator informs the parties of any circumstance likely to
create in their minds a legitimate doubt about their independence and
impartiality and may accept their appointment only with their unanimous and
written consent.
From the date of their appointment and throughout the proceedings, the
arbitrator must reveal any such circumstances to the parties without delay.
The CCJA Regulation on Arbitration states, at Article 4.1., paragraphs 3 to 5:
Before their appointment or confirmation by the Court, the prospective
arbitrator must disclose in writing to the Secretary-general any circumstances
likely to raise legitimate doubts about the arbitrator’s impartiality or
independence.
Upon receipt of this information, the Secretary-general communicates it in
writing to the parties and sets a time limit for them to present their respective
comments.
The arbitrator must immediately disclose, in writing to the Secretary-general
and the parties, any similar circumstances which may occur between their
appointment or confirmation by the Court and the notification of the final
award.
The revised version of Article 4.1 of the Regulation on Arbitration now includes the
express obligation for arbitrator(s) to disclose in writing any element or circumstance
likely to raise legitimate doubts about their impartiality or independence. This
obligation preexisted but was reinforced. Likewise, it is specified that written
submissions from the arbitrator concerned, the parties, and the other members of the
arbitral tribunal must be communicated to all other stakeholders (34) (the parties to the
dispute and the other arbitrators) within an appropriate period.

4
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 [G] Obligation to Stay the Proceedings and Refer the Parties to an Omitted
Preliminary Step
A new Article 8-1 has been added to the UAA as part of the revision of the arbitration
rules in November 2017. It states that:
In the presence of an agreement requiring the parties to comply with a pre-
arbitration dispute resolution step, the tribunal, upon request of a party,
ascertains that the agreement has been complied with and if applicable,
refers the parties to the completion of that preliminary step.
If the preliminary step has not been initiated, the arbitral tribunal stays the
proceedings for a time period it deems appropriate, to allow the most diligent
party to complete that step.
If the preliminary step has actually been initiated, the arbitral tribunal takes
notice, If applicable, of its failure.
That new provision of Article 8-1 of the UAA has been reproduced, in quasi identical
terms, in Article 21-1 of the CCJA Regulation on Arbitration. (35) It expressly allows parties
to insert step clauses in their agreement(s). For an illustration of such a clause, see
Société Générale de Banques en Côte d’Ivoire v. Kobenan Tah, (36) where the agreement of
the parties stipulated, for the settlement of any dispute, the obligation of a prior attempt
at conciliation before, if necessary, recourse to arbitration under the CCJA Rules. It will be
up to the parties, if they choose to provide for a preliminary step such as mediation, to
properly draft their step clause in order to differentiate it from a clause providing for
prior conciliation. Articles 8-1 of the UAA and 21-1 of the CCJA Regulation on Arbitration
remind arbitrator(s) of their obligation, in the presence of a step clause in the agreement
of the parties, and if a party requests it, to ensure the clause is complied with by staying
the proceedings, where necessary, in order to allow the implementation of the omitted
preliminary step.
Since the Legislator has not provided for any sanction, it is not a procedural formality to
be carried out sua sponte by the arbitral tribunal. However, the stay of the arbitration
proceedings to allow the completion of the formality in question becomes mandatory if
the parties have provided for it in their agreement, and one of them expressly requests
it. If the arbitral tribunal disregards the completion of such a formality, in the presence
of a clear stipulation of the parties and the request of one of them, the arbitral tribunal
may be sanctioned by the annulment of its award for breach of public order (procedural
in this case), and or failure to comply with its mission.
Parties are advised to ensure that any request for the prior formality omitted is made in
a timely manner. This can be done by ensuring that their request is recorded in the
minutes of their meetings or hearings or their exchanges with the tribunal as
appropriate. As far as they are concerned, the arbitrators will have to take note of any
procedural details in writing from the start of the proceedings, to prevent late claims
from a party that they have raised the issue which the tribunal has ignored.

[H] Obligation to Give a Fair and Equal Treatment to the Parties

Under Article 9 of the UAA and the first sentence of Article 16 paragraph 2 of the CCJA
Regulation on Arbitration, (37) parties must be treated equally, and each party must be
given full opportunity to present their case. There are cases illustrating, under both the
UAA (§3.04[H][1]) and the CCJA Rules (§3.04[H][2]), what amounts to fair and equal
treatment to the parties and what is not.
[1] Under the UAA
There is a breach of equal treatment of parties to the arbitration which may justify the
annulment of an award when:
– parties to an arbitration file divergent copies of the arbitration rules, one stating
fifteen days and the other thirty days, and the arbitrators grant different time limits
for the parties to prepare and present their defense (based on the divergent rules
filed by the parties);
– arbitrators discriminate in applying the contract to one party while refusing to do
so for the other party to the dispute; and
– the arbitrators remain silent on the submission of a party. (38)
However, there is no breach of equal treatment, and an appellate court is wrongly
criticized for violating Article 9 of the UAA by rejecting the plea alleging breach of the
adversarial principle on the grounds “that the [appellant] not have been prevented from
asserting their rights throughout the arbitration procedure (…)” since it is established
that after having fixed the deliberations of the case on August 4, 2014, the Arbitral
Tribunal on July 10, 2014, requested counsel for both parties, not just counsel for the
[appellee] as claimed by [the appellant], to produce a certain number of exhibits by July
17, 2014; and the documents produced for this purpose by the [appellee] were
communicated to the counsel for [the appellant] on July 21, 2014, and the latter had
sufficient time to reply before the award was made on 4 August 2014. The argument is

5
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 devoid of merit and must be rejected. (39) The obligation imposed on arbitrators to treat
the parties equally often goes hand in hand with the obligation to allow parties to assert
their respective rights, which is often assimilated by case law to the right to
adversarial proceedings. (40)
[2] Under the CCJA Rules
Under the CCJA Rules, the obligation for arbitrators to treat parties to arbitration
proceedings equally has been asserted by the CCJA in Société Ivoirienne de Raffinage v.
Bona Shipholding LTD, (41) where the CCJA ruled that under Article 19 of the CCJA
Regulation on Arbitration, it is up to the arbitral tribunal to assess the appropriate
investigative measures for the resolution of the dispute submitted to it. Consequently, by
deciding, in the light of “the particularly complex facts of the situation” discussed by all
the parties through adversarial proceedings, “that it cannot therefore in [the case at
hand], conclude that there is a case of force majeure,” the arbitral tribunal which
rendered the award under review did not breach the principle of equal treatment
between the parties, which must be observed in arbitration.

§3.05 ROLE OF THE PRESIDING ARBITRATOR

The role of the chairman of an arbitral panel is relevant only under the CCJA Rules and is
governed by Article 22.3 of the CCJA Regulation on Arbitration. It is presented infra, at
Chapter 12, §12.04[B].

§3.06 CHOICE OF LAW GOVERNING THE ARBITRATOR’S OBLIGATIONS,

RIGHTS AND PROTECTIONS
Under both sets of rules (the UAA and the CCJA Rules), there is, per se, no right for the
parties to arbitration proceedings to choose the law governing the rights and obligations
of arbitrator(s). However, parties are free to agree on the use of some international rules
applicable to arbitration proceedings, as long as those rules do not conflict with the
provisions of the UAA. Some of those rules are the International Bar Association (IBA)
Guidelines on Conflicts of Interest in International Arbitration (2014), the IBA Rules on the
Taking of Evidence in International Arbitration (2014) (“IBA Rules”), (42) as well as the Rules
on the Efficient Conduct of Proceedings in International Arbitration, known as the “Prague
Rules.” (43) Such rules can only supplement the applicable rules, and whenever they are
chosen, they might incidentally have an impact on the rights and obligations of
arbitrator(s). However, there is no publicly available record of reference to any such rules
in arbitration proceedings governed by either the UAA or the CCJA Arbitration Rules.

References
1) On the choice of applicable rules, see Article 10 of the UAA.
2) Translated for French: “Déclaration d’acceptation, d’indépendance et d’impartialité de
l’arbitre.” This is a binding document in which the arbitrator undertakes to commit
themselves to the rules and the legal framework of their mission during its
performance. For a model, see in the CCJA Arbitration Guide, Guide d’Arbitrage de la
CCJA-OHADA, 2d. ed., 2018, 142-144 (Common Court of Justice and Arbitration, 2018).
3) The case management conference is an important meeting at the end of which
parties and arbitrator(s) sign a binding document containing all the main terms of
the proceedings. See Chapter 3, §3.03, infra.
4) Jivraj v. Hashwani [2011] UKSC 40, https://www.supremecourt.uk/cases/docs/uksc-
2010-0170-judgment.pdf [accessed Mar. 1, 2020, at 11:49], para. 40, 42: “it is in my
opinion plain that the arbitrators’ role is not one of employment under a contract
personally to do work … . He is rather in the category of an independent provider of
services who is not in a relationship of subordination with the parties who receive his
services … . Once an arbitrator has been appointed, at any rate in the absence of
agreement between them, the parties effectively have no control over him.” [Emphasis
added].
5) Cour de cassation [Cass.] [supreme court for judicial matters] 2e civ., Jul. 3, 1996 n°
94-10576, RJDA 11/96 n° 1414 (Edition Francis Lefebvre, 1996).
6) Prescriptive Decision of the CCJA N° 004/99/CCJA of Feb. 3, 1999 on Arbitration Costs,
supra, introduction.
7) Id, Art. 9.
8) Republique de Guinee v. Getma International, N°139/2015, Decision, Cour Commune
de Justice et d’Arbitrage [CCJA] [Common Court of Justice and Arbitration] [C.C.J.A.],
(Nov. 19, 2015), http://www.ohada.com/jurisprudence/ohadata/J-16-132.html.
9) Getma Int’l v. The Republic of Guinea N° 14-1616, Mem Op. (D.C. Jun. 9, 2016)),
http://res.cloudinary.com/lbresearch/image/upload/v1465576216/getma_v_guinea_
moa_105116_1730.pdf [accessed Mar. 16, 2020, 17:44].

6
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 10) Getma International v. Republic of Guinea, No. 16-7087 (D.C. Cir. 2017),
https://law.justia.com/cases/federal/appellate-courts/cadc/16-7087/16-7087-2017-
07-07.html [accessed Mar. 16, 2020, 17:53].
11) CCJA Regulation on Arbitration, Art. 24.4.
12) Flock v. Beattie, 2010 ABQB 193 (CanLII), <http://canlii.ca/t/28vh3>, retrieved on
2020-03-17.
13) Id., at 57.
14) The Chartered Institute of Arbitrators v. John D Campbell QC, Decision of the
Disciplinary Tribunal of CIArb (May 5, 2011), reported by David Hacking and Sophia
Berry, Ethics in Arbitration: Party and Arbitral Misconduct, in Defining Issues in
International Arbitration, Oxford University Press,
http://www.lordhacking.com/Documentation/Hacking%20&%20Berry%20-
%20Ethics%20in%20Arbitration%20April... [accessed Apr. 12, 2017, at 04:12] (David
Hacking, 2017).
15) Howard v. Drapkin, 222 Cal.App.3d 843 (Cal. Ct. App. 1990),
https://casetext.com/case/howard-v-drapkin [accessed Mar. 17, 2020, at 12:17].
16) Robert M. Carroll, Quasi-Judicial Immunity: The Arbitrator’s Shield or Sword, 1991 J.
Disp. Resol. 12 (1991), available at:
https://scholarship.law.missouri.edu/jdr/vol1991/iss1/10 [accessed Mar. 17, 2020]
(Carroll, 1991).
17) Mark A. Sponseller, Redefining Arbitral Immunity: A Proposed Qualified Immunity
Statute for Arbitrators, 44 Hastings L.J. 421 (1993), 438-439, available at:
https://repository.uchastings.edu/hastings_law_journal/vol44/iss2/5 [accessed Mar.
17, 2020] (Sponseller, 1993).
18) Emmanuela Truli, Liability v. Quasi-Judicial Immunity of the Arbitrator: The Case
Against Absolute Arbitral Immunity, 17 Am. Rev. Intl Arb. 16 (2006),
https://www.academia.edu/13444342/Liability_V._Quasi-
Judicial_Immunity_of_The_Arbitrator_The_Case_Ag... [accessed Mar. 17, 2020 at 17:54]
(Truli, 2006).
19) Cour de cassation [Cass.] [Supreme Court for judicial matters] 1e civ., Jan. 15, 2014 n°
11-17.196. Bull. civ. I n° 1 (Fr): civil liability of arbitrators for breach of duty of
impartiality and good faith, or a personal fault equivalent to fraud or constituting
fraud, gross negligence or denial of justice. Cour de cassation [Cass.] [supreme court
for judicial matters] 1e civ., Dec. 6, 2005 n° 1660. RJDA 6/06 n° 728 (Fr).; and, upon
referral, Cour d’appel [CA] [regional court of appeal] Orléans, n° 06-806, Apr. 13 2007,
RJDA 3/08 n° 345 (Fr).
20) Emmanuela Truli, supra, Chapter 4 fn. 18, at page 5, indicating that institutional rules
of the American Arbitration Association and the London Court of International
Arbitration already contemplate the possibility of arbitrator liability for conscious or
deliberate wrongdoing.
21) See the South African International Arbitration Bill of 2016, § 9(1) (available at:
https://www.pretoriabar.co.za/pdf/arbitrators/international%20arbitration%20act%
202016.pdf [accessed Apr. 12, 2017, 16:42].
22) Cour d’appel [CA] [regional court of appeal] Paris, n° 14/05436, Mar. 31 2015, RTD com.
2016.76 obs. Loquin (Fr).
23) Djoumessap Motsebo v. The OHADA Permanent Secretary, N° 032/2015, Decision,
[C.C.J.A.], Ass. plen., (Apr. 23, 2015), http://www.ohada.com/jurisprudence/ohadata/J-
16-32.html.
24) See supra, Chapter 3, §3.01.
25) UAA, Art. 7 para. 2.
26) CCJA Regulation on Arbitration, Art. 4.1. para. 2.
27) UAA, Art. 7 para. 3.
28) Id.
29) CCJA Regulation on Arbitration, Art. 4.1., para 1.

7
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 30) For example, Article 6 § 1 of the Convention for the Protection of Human Rights and
Fundamental Freedoms states that “everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal established by
law.” (https://www.echr.coe.int/Documents/Convention_ENG.pdf [accessed Mar. 18,
2020, at 14:49]). The right to be tried within a reasonable time has been affirmed on
several occasions by the European Court of Human Rights (ECHR), the decisions of
which have often inspired African Courts ruling in matters of Human Rights. See for
example Piabié Jean-Baptiste Bako, “L’influence de la jurisprudence de la CJUE sur
l’interprétation juridictionnelle du droit communautaire ouest-africain (CEDEAO-
UEMOA),” http://www.ceje.ch/files/4114/6218/2918/Geneva_JMWP_07-Bako.pdf
[accessed Aug. 20, 2018, at 09:14] (Bako)). For cases: Sory Touré v. Republic of Guinea,
ECW/CCJ/JUG/03/16, Decision, [Ecowas Community Court of Justice], (Dec. 16, 2016),
http://prod.courtecowas.org/wp-content/uploads/2019/01/ECW_CCJ_JUD_03_16.pdf
[accessed Mar. 18, 2020, at 15:22], citing: Bodaert v. Belgium, App. N° 12919/87, Eur. Ct.
H.R. Ehivet & Gbagbo v. Republic of Ivory Coast, ECW/CCJ/JUD/03/13, Decision,
[Ecowas Community Court of Justice], (Feb. 22, 2013),
http://www.courtecowas.org/site2012/pdf_files/decisions/judgements/2013/SIMONE
_MICHEL_GBAGBO_c_COTE_... [accessed Aug. 20, 2018, at 09:28], citing: Lawless v.
Ireland, App. N°332/57, Eur. Ct. H.R., http://hudoc.echr.coe.int/eng?i=001-57518
[accessed Mar. 19, 2020, at 10:38]; Ireland v. United Kingdom, App. N° 5310/71, Eur. Ct.
H.R., http://hudoc.echr.coe.int/eng?i=001-57506 [accessed Mar. 19, 2020, at 10:58];
Brannigan & McBride v. United Kingdom, 26.05.1993; App. N° 14553/89; 14554/89, Eur.
Ct. H.R., http://hudoc.echr.coe.int/fre?i=001-57819 [accessed Mar. 19, 2020, at 11:01];
Aksov v. Turkey, App. N° 21987/93, Eur. Ct. H.R., http://hudoc.echr.coe.int/eng?i=001-
58003 [accessed Mar. 19, 2020, at 11:01]; A. & others v. United Kingdom, App. N°
3455/05, Eur. Ct. H.R., http://hudoc.echr.coe.int/eng?i=001-91403 [accessed Mar. 19,
2020, at 11:07].
31) Article 7 of the African Charter on Human and Peoples’ Rights states that:
1. Every individual shall have the right to have his cause heard. This
comprises:
a. The right to an appeal to competent national organs against
acts of violating his fundamental rights as recognized and
guaranteed by conventions, laws, regulations and customs in
force;
b. The right to be presumed innocent until proved guilty by a
competent court or tribunal;
c. The right to defense, including the right to be defended by
counsel of his choice;
d. The right to be tried within a reasonable time by an impartial
court or tribunal.
2. No one may be condemned for an act or omission which did not
constitute a legally punishable offence at the time it was
committed. No penalty may be inflicted for an offence for which no
provision was made at the time it was committed. Punishment is
personal and can be imposed only on the offender,
https://www.achpr.org/legalinstruments/detail?id=49 [accessed
Mar. 19, 2020, at 11:21]. [Emphasis added]

32) See Sory Touré v. Republic of Guinea, supra, Chapter 3, fn. 30, holding that the right to
a decision within a reasonable time is assessed in light of the circumstances of the
case, including its complexity, the behavior of the applicant and that of the
competent administrative and judicial authorities; Ehivet & Gbagbo v. Republic of
Ivory Coast, supra, Chapter 3, fn. 30.
33) Cour d’appel [CA] [regional court of appeal] Paris, 1st ch. C, n° 14/05436, Feb. 4 1999:
GP 2001.som. 1907 (Fr).
34) CCJA Regulation on Arbitration, Art. 4.2, para. 3.
35) The main difference between Art. 8-1 of the UAA and Art. 21-1 of the CCJA Regulation
on Arbitration is that the three paragraphs of the latter are numbered 21-1.1, 21-1.2
and 21-1.3.
36) Société Générale de Banques en Côte d’Ivoire v. Kobenan Tah, N° 075/2016, Decision,
[C.C.J.A.], 2e ch., (Apr. 21, 2016), http://www.ohada.com/jurisprudence/ohadata/J-17-
24.html. See also Roger v. Fofana, N° 024/2010, supra, Chapter 1, fn. 16; Tradex
Centrafrique v. Transport Madina, N° 181/2019, Decision, [C.C.J.A.], 1e ch., (Jun. 26,
2019).
37) For the first time, the OHADA Legislator affirmed in the CCJA Regulation on Arbitration
the right of the parties to be treated equally by the arbitral tribunal. The first
sentence of para. 2 of revised Article 16 enshrines this innovation by the complete
reproduction of Art. 9 of the UAA.
38) CA Centre, Feb. 6, 2008, N° 52/Civ., (Cameroon),
http://www.ohada.com/jurisprudence/ohadata/ J-10-249.html.
39) Prévoyance Assurances S.A. v. Eiffage Sénégal, N° 220/2018, Decision, [C.C.J.A.], 1e ch.,
(Nov. 29, 2018).

8
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 40) See for example, CA Pointe-Noire, Mar. 4, 2005, supra, Chapter 2, fn. 10, where the
Court of Appeal of Pointe-Noire held that it results from the combined provisions of
Arts. 9 and 14 paras. 5 and 6 of the UAA [before revision] that the arbitrator’s
compliance with the adversarial principle, the absence of which entails annulment of
the award, means, on the one hand, the obligation of the tribunal to grant each party
the opportunity to make their claims, to know those of their opponent and to
proceed with their discussion, and on the other hand, of the prohibition to rely on
arguments raised sua sponte by the arbitrator without the parties being invited
beforehand to discuss them or to carry out personal investigations on their own. In
the case at hand, the arbitrator who states in their award that they conducted an
investigation themselves without involving the parties or subjecting their findings of
facts or law to the discussion of the parties—moreover not recorded in minutes—
breached the adversarial principle, since the reasoning of their award establishes
peremptorily that the arbitrator relied on the information gathered during his
solitary investigation. The award was annulled.
41) Société Ivoirienne de Raffinage v. Bona Shipholding LTD, N° 029/2007, Decision,
[C.C.J.A.], Ass. plen., (Jul. 19, 2007), http://www.ohada.com/jurisprudence/ohadata/J-
08-241.html.
42) Available at:
https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.a
spx#collapse3 [accessed Mar. 20, 2020 at 17:16].
43) Available at https://praguerules.com/prague_rules/ [accessed Mar. 20, 2020, at
17:11].

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

9
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 4: Selection of Arbitral Seat

Chapter 4 has four sections on the importance of the selection of arbitral seats (§4.01),
Publication the selection of seat by the parties (§4.02), by the CCJA in the absence of an agreement by
the parties (§4.03), and the possibility to hold meetings and hearings in a location
Arbitration in Africa under different from the seat of the arbitration under the CCJA Rules (§4.04).
OHADA Rules
§4.01 IMPORTANCE OF SELECTION OF ARBITRAL SEAT
Organization There is a general rule under which “jurisdiction to set aside an award belongs to the
competent state courts of the country in which the award was made and only
Cour Commune de Justice alternatively to the courts of the country under the law of which the award was made.” (1)
et d’Arbitrage de There is another general rule according to which an arbitral award is rendered at the
l’Organisation pour place where it has been signed. (2) Under OHADA Arbitration Rules, the seat of arbitration
l’Harmonisation en Afrique is very important because it dictates the applicable law to the proceedings and
du Droit des Affaires determines the competent courts for annulment of the award as well as any enforcement
issues where enforcement is carried out on the territory of any of the seventeen OHADA
Members States. (3) As it has been stressed in the introduction, (4) the CCJA has exclusive
Bibliographic reference jurisdiction of last resort on all matters relating to arbitration as far as the UAA and the
CCJA Arbitration Rules are involved. Thus, the national competent court of the seat of
'Chapter 4: Selection of the arbitration has jurisdiction to annul an award rendered under the UAA, and the
Arbitral Seat', in Mahutodji decision of that court can be appealed only before the CCJA. For institutional arbitration
Jimmy Vital Kodo , proceedings governed by the CCJA Rules, any request for annulment is filed directly
Arbitration in Africa under before the CCJA, the decision of which is final and binding as well.
OHADA Rules, (© Kluwer
Law International; Kluwer Under OHADA rules, there are specific reasons for which the seat of arbitration is
Law International 2020) pp. important.
55 - 58 First, under Articles 10 and 14 of the Treaty, the OHADA Rules, including the UAA and the
CCJA Arbitration Rules are binding and mandatory in all the States Parties after they have
been enacted and become enforceable.
Second, under Article 1 of the UAA, “[the UAA] is applicable to any arbitration where the
seat of the arbitral tribunal is in one of the States Parties.”
Third, an arbitral award “must be signed by the arbitrator(s)” (5) and “is deemed to have
been rendered at the seat of the arbitration and on the day of its signing.” (6)
Fourth, the jurisdiction of the CCJA covers only the geographical territory of the OHADA
Member States (for personal jurisdiction) and the matters described in Article 2 of the
OHADA Treaty, which includes arbitration under the UAA and the CCJA Rules (for subject
matter jurisdiction). Thus, only arbitration proceedings for which the seat has been
located within the OHADA geographical territory, namely in one of the seventeen Member
States, are within the purview of the CCJA. In light of this, the CCJA has constantly ruled
that the UAA does not apply to arbitration proceedings where the seat was outside the
geographical scope of the Treaty, namely in a country other than one of the seventeen
States Parties. That was the case in Safic Alcan Commodities v. complexe Chimique
Camerounais, (7) where the arbitration seat was in London (England), and in Ottakringger
Brauerei v. Union Camerounaise des Brasseries, (8) where the seat was in Switzerland.
Since, as mentioned above, an arbitral award is deemed to have been rendered at the
seat of the arbitration, and the UAA applies to any arbitration where the seat of the
arbitral tribunal is in one of the States Parties to the Treaty, to comply with those rules,
all arbitration proceedings carried out within the geographic territory of OHADA are
governed either by the UAA or the CCJA Rules and must have their seat in one of the
States Parties to the Treaty, except for specific matters for which another treaty has
provided a different arbitration mechanism. Even though the OHADA Arbitration Rules
cover any arbitration proceedings carried out within the geographical scope of the
Treaty, matters not included in the ten matters currently covered by Article 2 of the
Treaty, (9) or governed by specific arbitration rules under another treaty are neither
governed by OHADA Arbitration Rules nor under the purview of the CCJA’s jurisdiction. An
illustration of that exception can be found in Area Assurances v. Proassur, where the CCJA
ruled that notwithstanding the fact that the headquarters of the National Arbitration and
Dispute Resolution Commission is in Cameroon, a State Party to the OHADA and CIMA (10)
Treaties, the arbitral award rendered under the CIMA Code, which constitutes an
autonomous Community law, is subject neither to the UAA nor to a Regulation under the
Treaty. Thus, the related dispute does not fall under the jurisdiction of the CCJA, which
must decline jurisdiction. (11)

§4.02 SELECTION OF THE SEAT BY THE PARTIES

Under Article 13 paragraph 1 of the CCJA Regulation on Arbitration, “the seat of the
arbitration is set by the arbitration agreement or by a later agreement of the parties.”

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 Thus, the choice of the seat of arbitration is primarily the prerogative of the parties.

§4.03 SELECTION OF THE SEAT BY THE CCJA IN THE ABSENCE OF AGREEMENT

BY THE PARTIES
In the absence of an agreement of the parties on the seat of arbitration, the seat is set by
a decision of the CCJA made before the file is sent to the arbitral tribunal. (12) Finally,
where circumstances make it difficult or impossible to proceed with the arbitration at
the initial seat, the CCJA may, on the request of the parties, a party or the arbitrator,
choose another seat. (13) It must be noted that in any event, the arbitral tribunal cannot
change the seat on its own or even upon the request of a party. Only the CCJA can make
such a decision. It must be remembered that those decisions are made by the CCJA in its
capacity as an arbitral institution administering arbitration proceedings and not as a
Court of law. (14)

§4.04 HOLDING OF HEARINGS AND OTHER MEETINGS AT A PLACE DIFFERENT

FROM THE SEAT
The tribunal may not have the power to change the seat of the arbitration, but unless
otherwise agreed, the tribunal may, after consultation with the parties, decide to hold
hearings and meetings and deliberate in any place it considers appropriate. (15)
The old version of Article 13 allowed the tribunal, after consulting the parties, to hold
hearings elsewhere than the seat of the arbitration and left it to the CCJA to settle any
disagreement on this question. While maintaining the possibility to hold hearings in a
different location from the seat of the arbitration, the revised version of the Regulation
on arbitration currently in force eliminates the possibility of having a possible dispute
decided by the CCJA but, in return, gives the parties more freedom by allowing them to
object to the holding of hearings, meetings and deliberations in a place different from
the seat of the arbitration. Therefore, parties are advised to ensure that a common
position on these details is reached before a dispute arises.
The only important thing to remember, if the tribunal decides to hold hearings and other
meetings in a place different from the seat of the arbitration, is that the award itself must
be signed at the seat of arbitration to remain within the boundaries of the OHADA
Arbitration Rules and the purview of the CCJA for the possible petition for annulment or
any other enforcement-related issues.
Apart from its Article 1 which determines the scope of its application and its Article 20 c)
which states that an arbitral award must indicate the seat of arbitration, the UAA
contains no other specific reference to the seat; however, most of the rules relating with
the seat under the CCJA rules present above are implied for arbitration proceedings
governed by the UAA.

References
1) See Mauro Rubino-Sammartino, Links amongst venue, Lex Fori and jurisdiction to set
aside proceedings, https://www.lexology.com/library/document.ashx?g=64771aad-
d5b4-4800-9f1c-51085c8ccdfe [accessed 21 Mar. 2020] (Rubino-Sammartino, 2020).
2) See Hiscox v. Outhwaite [1991] 2 WLR 1321,
http://newyorkconvention1958.org/index.php?lvl=notice_display&id=892 [accessed
Mar. 21, 2020]. It must be noted however, as pointed out by Mauro Rubino-
Sammartino, that the law has been amended in England and now provides that
“Unless otherwise agreed by the parties, where the seat of the arbitration is in England
and Wales or Northern Ireland, any award in the proceedings shall be treated as made
there, regardless of where it was signed, despatched or delivered to any of the parties.”
See Rubino-Sammartino, supra, Chapter 4 fn. 1.
3) See in the introduction, supra, for the list of those seventeen countries.
4) Supra, Introduction fn. 14, 15.
5) CCJA Regulation on arbitration, Art. 22.3 para. 2. UAA, Art. 21 para. 1.
6) Id., Art. 22.2. This specific rule does not exist per se in the UAA, but it is implied.
7) Safic Alcan Commodities v. Complexe Chimique Camerounais, N° 020/2011, Decision,
[C.C.J.A.], 3e ch., (Dec. 6, 2011), http://www.ohada.com/jurisprudence/ohadata/ J-13-
164.html. The CCJA ruled that arbitration that took place outside the OHADA space (in
London in this case) is not governed by the UAA and the Court of Appeal which
applied the UAA to such proceedings violated Article 1 of the UAA and set out its
judgment to cassation. On de novo review, the CCJA held that the Court of Appeal
wrongfully considered itself competent and wrongfully applied the UAA to the
proceedings. Therefore, the CCJA must decline jurisdiction.

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 8) Ottakringger Brauerei v. Union Camerounaise des Brasseries, N° 113/2018, Decision,
[C.C.J.A.], 2e ch., (May 6, 2018). On de novo review and for the same reasons that
entailed cassation of the ruling of the Court of Appeal, the CCJA held that the Douala
Court of Appeal did not have jurisdiction over that arbitration, the seat of which was
in a country foreign country to the OHADA space.
9) Supra, Introduction, fn. 9.
10) CIMA, is the French acronym for the “Conférence Interafricaine des Marchés
d’Assurance,” the Inter-African Conference on Insurance Markets. It was created by the
Convention establishing the International Conference of Insurance Controls (CICA),
signed on Jul. 27 1962 by thirteen African States, replaced by the Treaty establishing
an Integrated Organization of the Insurance Industry in African States as community
organization the Inter-African Conference on Insurance Markets, signed in Yaounde
(Republic of Cameroon) on Jul. 10, 1992. So far, fourteen of the OHADA States Parties
have signed the Treaty: Benin, Burkina, Cameroon, Central African Republic, Comoros,
Côte d’Ivoire, Gabon, Guinea Bissau, Equatorial Guinea, Mali, Niger, Senegal, Chad
and Togo. Comoros has not ratified the Treaty, which is in force only in the other
thirteen States. https://cima-afrique.net/historique/?lang=en a [accessed Mar. 22,
2020].
11) Area Assurances v. Proassur, N° 195/2019, Decision, [C.C.J.A.], 2e ch., (Jun. 27, 2019).
12) CCJA Regulation on Arbitration, Art. 13, para. 2.
13) Id., Art. 12, para. 4.
14) On this important distinction, see infra, Chapter 5, fn. 43-47.
15) CCJA Regulation on Arbitration, Art. 13, para. 3.

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 5: Parties' Choice of the Procedure

It will be highlighted in this chapter that when it comes to the choice of the procedure,
Publication the autonomy of the parties is also the key rule (§5.01), followed by the discretion of an
arbitral tribunal if the parties fail (§5.02). There are some mandatory procedural
Arbitration in Africa under requirements that need to be complied with (§5.03), and in all cases, judicial non-
OHADA Rules interference is highly regarded by the CCJA (§5.04).

§5.01 PARTIES’ AUTONOMY TO DETERMINE ARBITRAL PROCEDURE

Organization
Parties’ autonomy in the determination of the procedure will be presented under the UAA
Cour Commune de Justice (§5.01[A]) and the CCJA Rules (§5.01[B]).
et d’Arbitrage de
l’Organisation pour [A] Under the UAA
l’Harmonisation en Afrique
du Droit des Affaires Under Article 14, paragraph 1 of the UAA, which states that “the parties may, directly or by
reference to arbitration rules, determine the arbitral procedure. They may also subject it
to a procedural law of their choice,” parties theoretically have the latitude to choose
procedural rules for the arbitration proceedings. However, the UAA in itself can be
Bibliographic reference construed as the procedural framework of arbitration proceedings it governs. Its
'Chapter 5: Parties' Choice mandatory nature, as highlighted under Article 10 of the Treaty, leaves little room to the
of the Procedure', in parties for choosing other procedural rules for arbitration proceedings the UAA governs.
Mahutodji Jimmy Vital Kodo In line with this, the CCJA ruled, in Société Construction métalliques Ivoiriennes v.
, Arbitration in Africa under Fraternité Saint Jean-Eudes d’Abatta, that the UAA has replaced the preexisting laws
OHADA Rules, (© Kluwer organizing arbitration in the domestic law of the States Parties to the Treaty, leaving only
Law International; Kluwer the possible standards of organization of institutional arbitration which are not
Law International 2020) pp. contrary to the UAA. (1) Indeed, Article 10, paragraph 1 of the UAA states that “where the
59 - 74 parties have agreed to refer to an arbitration institution, they are committed to applying
the arbitration rules of that institution unless they expressly waive specific provisions in
agreement with this institution.”
Thus, parties really can choose other procedural rules only where there is a vacuum in the
UAA itself or, where applicable, in the rules of any arbitration center they refer their
dispute to. It must be kept in mind that any national or local arbitration center located
in any of the OHADA States Parties must operate in accordance with the provisions of the
UAA, and no provision of the arbitration rules of such center cannot be enforced if it
conflicts with any provision of the UAA. Likewise, where parties choose ad hoc arbitration
based solely on the UAA, they can agree to choose any other procedural rules, provided
such rules do not conflict with the provisions of the UAA. Finally, it must be emphasized
that, in light with Article 10 paragraph 1 of the UAA quoted above, the parties cannot
waive any provision of the UAA; they can only waive provisions of the rules of an
arbitration center they choose, and only if the said rules allow such waiver.

[B] Under the CCJA Rules

The CCJA Regulation on Arbitration “is applicable to the proceedings before the arbitral
tribunal and in its silence, the rules which the parties or, failing that, the arbitral tribunal
determines, with or without reference to the law of procedure applicable to arbitration,
will be applicable.” (2) As it was emphasized in the introduction, (3) the CCJA Arbitration
Rules are mandatory, and parties can choose additional procedural rules only “in the
silence” of the CCJA Arbitration Rules. The large scope of the different rules that form the
CCJA Arbitration Rules (4) seems to leave very little room for any legal vacuum justifying
the use of other rules, but in any event, parties are free to supplement the CCJA
Arbitration Rules with other rules on matters not specifically regulated in details, such as
determination of conflicts of interest, the taking of evidence, among others. For these
issues, parties could refer to the IBA Guidelines on Conflicts of Interest in International
Arbitration (2014), the IBA Rules on the Taking of Evidence in International Arbitration
(2014), or the Prague Rules mentioned earlier. (5)

§5.02 ARBITRAL TRIBUNAL’S DISCRETION TO DETERMINE THE PROCEDURE

The discretion of an arbitral tribunal to determine the procedure will also be presented
under the two systems.

[A] Under the UAA

In the absence of an agreement of the parties on the rules to govern the procedure, the
arbitral tribunal may proceed with the arbitration as it deems appropriate. (6) As noted
in the introduction, supra, the institutional arbitration governed by the CCJA Regulation
on Arbitration and Articles 21-26 of the Treaty, on the one hand, and arbitration governed
by the UAA, on the other hand, are completely separate and operate independently, the

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 CCJA having repeatedly clarified the different regimes of the two arbitration systems. It
follows that, in principle, the CCJA Arbitration Rules do not apply to proceedings
governed by the UAA. However, one may wonder whether the wording of Article 14,
paragraph 1 of the UAA, which allows the parties to refer to arbitration rules, without
precision, would not allow the use of the CCJA Arbitration Rules to govern the procedure.
The wording seems to allow this, but parties are advised not to refer to the CCJA
Arbitration Rules for arbitration governed by the UAA to avoid any risk of confusion,
except for the parties and or the arbitrators to ensure that such reference is made only to
govern the procedure. If necessary, nothing prevents the arbitral tribunal from extracting
specific provisions from the said Rules in order to draw up a body of rules to govern their
procedure. The aim is to avoid any risk of confusion at all costs.

[B] Under the CCJA Rules

The procedural rules set out in the CCJA Regulation on Arbitration are, in principle,
intended to be sufficient for the procedure. However, it is permitted to supplement
them, if necessary, with rules that the parties have chosen or, in the absence of choice by
them, those that the arbitral tribunal itself will decide to use as a supplement. It is not a
matter of replacing the provisions of the CCJA Arbitration Rules, which are mandatory and
binding on the parties and the Court (Article 10.1 of the CCJA Regulation on Arbitration),
but only of supplementing them if necessary. The old version of Article 16 of the CCJA
Regulation on Arbitration allowed arbitrators when required to supplement the
procedural rules, to refer to “an internal law of procedure applicable to arbitration.” The
revised version of Article 16 paragraph 1 of the CCJA Regulation on Arbitration allows
them to refer to “the procedural law applicable to arbitration,” without further details.
This wording may seem vague since, apart from the CCJA Arbitration Rules, there is no
other set of rules governing the procedure of institutional arbitration under the aegis of
the CCJA, which is not attached to any national legal order because of its supranational
nature. The reference to a “domestic law” of procedure, i.e., undoubtedly a national law,
for example, that of a State Party to the Treaty) seems more precise to us. But in any
event, the determination of a supplementary procedural law should not be a problem if
the parties take care to think about it beforehand.

§5.03 MANDATORY PROCEDURAL REQUIREMENTS

It has been written that “legislation and/or judicial decisions in most developed
jurisdictions require that arbitral proceedings seated in local territory satisfy minimal
standards of procedural fairness and equality. These standards are variously referred to
as requiring ‘due process,’ ‘natural justice,’ ‘procedural regularity’ or ‘fair and equitable
treatment.’” (7) Likewise, under OHADA Arbitration Rules, there are several mandatory
procedural requirements, the absence of which may entail or justify, depending on the
circumstances, stay of the arbitration proceedings or the annulment of an arbitral award.
For example, as discussed supra, an arbitral tribunal has to stay the proceedings where
parties have agreed to submit to a pre-arbitration dispute resolution step (such as
conciliation or mediation), which would not have been complied with. (8) Where it is
established that mandatory procedural requirements such as due process, adversarial
principle, or fair and equal treatment have been breached, then the award will
inevitably be annulled. (9)

§5.04 JUDICIAL NON-INTERFERENCE

Given the deeply damaging consequences they may have on the proceedings, there is no
interlocutory judicial review of procedural decisions of arbitral tribunals under the
OHADA Rules.

[A] Under the UAA

Judicial non-interference can be found through Articles 11 and 13 of the UAA, which
respectively embody the competence-competence principle (§5.04[A][1]) and the
exclusive jurisdiction of an arbitral tribunal where there is a valid arbitration agreement
(§5.04[A][2]).

[1] The Jurisdiction of an Arbitral Tribunal to Rule on Its Own Jurisdiction

Article 11, paragraph 1 of the UAA states that “the arbitral tribunal has exclusive
jurisdiction to rule on its own jurisdiction, including on all issues relating to the existence
or validity of the arbitration agreement.” That provision characterizes the widely
recognized competence-competence principle in international arbitration, which is
regularly enforced by the CCJA like it did in Sow v. Aka. (10) In a recent case, Ousseini v.
Délégation de l’Union Européenne au Niger, the CCJA held that only an arbitral tribunal has
jurisdiction to examine the validity of the arbitration clause and to rule on the case on
the merits and by declining jurisdiction, upon de novo review, the Court of Appeal does
not incur in any way the alleged grievances and the appeal must be dismissed. (11) The
CCJA also held that the “competence-competence” principle is autonomous. (12)
However, there are few important points parties must keep in mind regarding the

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 “competence-competence” principle.
First, “any objection to arbitral jurisdiction must be raised before any defense on the
merits except where the facts on which it is based have been disclosed later.” (13) Thus,
any party who is not convinced of the jurisdiction of the tribunal for any reason
whatsoever will ensure that the objection is raised clearly from the outset, thus providing
a possible favorable outcome if they are to refer to the competent court for remedies.
Very often, a well-formulated challenge at this stage provides additional arguments to be
raised before the competent court. In other words, the parties should not wait to raise
possible incompetence of the arbitral tribunal for the first time before the Court
hearing an appeal; incompetence must have been raised before the arbitral tribunal,
and the latter must have had the opportunity to rule on its jurisdiction. Arbitrators may
be advised, even in the absence of a challenge to their jurisdiction, to take notice in their
award, even as a preliminary step, of their jurisdiction to settle the dispute which was
submitted to them. This would reduce the risk of a later invalidation of their award for
incompetence, except in cases where the causes of incompetence appear after the
commencement of the proceedings.
Second, it has been ruled that the “competence-competence” principle, which allows
arbitrators to rule on the intrinsic validity of the arbitration agreement and thus rule on
their jurisdiction, is not absolute in scope since the state courts hearing an annulment
petition under Article 26 of the UAA ascertain the jurisdiction of the arbitral tribunal. It
follows that the petition for annulment filed in this context is admissible. (14) The CCJA
affirmed the same view in Wanmo v. Nguessi, (15) where it specified that the competent
court for annulment judge may control the arbitral tribunal’s assessment of the clause
that led the tribunal to retain its jurisdiction.
Third, there is no breach of Article 11, paragraph 1 of the UAA where an award has been
rendered on the basis of a valid arbitration clause, as held in Oryx Bénin v. Société
Africaine de Distribution et de Négoce. (16)
[2] The Exclusive Jurisdiction of an Arbitral Tribunal to Rule on the Merits
The first three paragraphs of Article 13 of the UAA state:
When a dispute subject to arbitration proceedings under an arbitration
agreement is brought before a State court, the latter must, if requested by one
of the parties, decline jurisdiction.
If the dispute has not yet been referred to the arbitral tribunal, or if no
request for arbitration has been filed, the state court must also decline
jurisdiction, unless the arbitration agreement is manifestly null or manifestly
inapplicable to the case. In that case, the competent court renders a final
decision on its jurisdiction within a maximum of fifteen (15) days. That
decision can be challenged only before the Common Court of Justice and
Arbitration in accordance with its Rules of Procedure.
In any event, the State court may not decline jurisdiction on its own motion.

Ten different situations have been settled by cases and will be presented hereafter.
There are the autonomy of the arbitration clause (§5.04[A][2][i]), an unproven emergency
requiring conservatory measures (§5.04[A][2][ii]), urgent measures involving substantive
examination of the merits (§5.04[A][2][iii]), assessment, on the merits, of the nullity of an
arbitration agreement (§5.04[A][2][iv]), the existence of an outright arbitration clause
(§5.04[A][2][v]), no waiver of arbitration (§5.04[A][2][vi]) an arbitration clause providing for
state courts only as a last resort (§5.04[A][2][vii]), the validity of an arbitration clause not
reiterated in successive agreements of the parties in the absence of novation (§5.04[A][2]
[viii]), disputes submitted to arbitration (§5.04[A][2][ix]) and the implementation of the
objection to jurisdiction (§5.04[A][2][x]).
[i] Autonomy of the Arbitration Clause
In the presence of agreements providing for recourse to arbitration for the settlement of
disputes, it is in violation of Articles 4 and 13 of the UAA that a Court of Appeal retained
its jurisdiction, subjecting the validity of the arbitration clause to that of the agreement
which contains it, following the termination of that agreement, to decide that the
claimant could not avail themselves of the arbitration clause contained in the contract,
thus exposing its judgment to cassation. On de novo review, the judgment which rejected
the objection to the jurisdiction of the arbitral tribunal must be quashed. (17)
[ii] Unproven Emergency Requiring Conservatory Measures
If it is true that Article 13 of the UAA authorizes the competent judge for interim measures
to rule on emergency matters, even in areas where jurisdiction has been assigned to an
arbitral tribunal, it is only on the condition that the parties justify the urgency that they
invoke. In the absence of evidentiary documents, the alleged disagreement between
shareholders and the paralysis of the normal functioning of a company’s organs are not
sufficient to characterize a threat to the interests of that company and its shareholders

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 and justify the appointment of an interim administrator to manage and administer it. The
only correspondence denouncing the actions of another officer of the company is
insufficient. This is all the more so since the chairman of the board of directors who
requests the judicial administration of the company concerned, which is a limited
company with complex management based on a multitude of governing bodies, does not
justify having brought the facts complained of in his correspondence to the attention of
the board of directors, whom he does not dispute that he did not meet regularly.
Consequently, the conditions for the jurisdiction of the judge for interim measures of the
Abidjan court to hear this dispute are not met. Therefore, that judge wrongfully declared
themselves competent and ordered the appointment of an interim director. Their
decision must be overturned, and the Court of Appeal, ruling again, must declare that
judge incompetent. (18)
In the presence of a contractual clause stating that “the parties must make their best
efforts to reach an amicable settlement of any dispute that may arise between them
under the contract. In the absence of an amicable settlement within 60 days after the
corresponding request of one of the parties for an amicable [out of court] settlement,
each party will be entitled to refer the matter to arbitration under the OHADA
conciliation and arbitration. The arbitration will take place in Dakar …,” it was by a
violation of Article 13 of the UAA that a Court of Appeal upheld the interim order which
ignored the objection to jurisdiction, terminated the agreement of the parties and ruled
against one of them. This is so because the decision to terminate and rule against one
party in no way constitutes a protective or provisional measure under Article 13 of the
UAA. Upon de novo review, it must be the termination decision that cannot be considered
as a protective or provisional measure, and the arbitration agreement, which is not
manifestly void, must have its effects. The interim order must be overturned, and
jurisdiction of the Court declined. (19)
[iii] Urgent Measures Involving Substantive Examination of the Merits
If under paragraph 4 of Article 13 of the UAA, the competent judge for interim measures
can rule in emergency matters even in the presence of an arbitration clause, the
measures they would have to order must not in any way involve an examination of the
dispute on the merits. The petition seeking the release of a pledge made under a
demand guarantee agreement necessarily involves an examination of the validity of the
guarantee agreement concluded by both parties, which results in incompetence of the
judge for interim measures. Thus, the Court of Appeal, which retained its jurisdiction,
disregarded the provisions of Article 13 of the UAA and set out its decision to the
cassation. On de novo review, the CCJA must overturn the interim order at hand and
decline jurisdiction. (20)
[iv] Assessment, on the Merits, of the Nullity of an Arbitration Agreement
The Court of Appeal, which, in order to hold that the request for a transactional protocol
to be declared void falls within the jurisdiction of the state court because the dispute
had not yet been referred to the arbitral tribunal, merely stated that “it also follows from
Article 13, paragraph 2 of [the UAA] that if, as in the case in which the dispute has not
been referred to the arbitral tribunal, the state court must also declare itself
incompetent, it is on the condition that the arbitration agreement is manifestly void,”
without demonstrating how the arbitration agreement contained in the transaction
protocol is manifestly void, did not give a legal basis for its decision which must be
quashed. Upon de novo review, it follows from the combination of the principle of
validity and that of competence-competence in arbitral matters that the state judge
cannot carry out a substantial and in-depth examination of an arbitration agreement to
rule on the nullity of the latter. The manifest nullity of an arbitration agreement must
arise only from the appearance of the arbitration agreement. In the case at hand, the
substantial and thorough examination falling outside the jurisdiction of the state court,
the Tribunal of First Instance was wrong in retaining jurisdiction. Therefore, the CCJA must
overturn the challenged judgment, declare itself incompetent by reason of the
arbitration agreement and refer the case and the parties to the arbitration under their
transactional protocol. (21)
[v] Outright Arbitration Clause
In the presence of a clause in the agreement of the parties stipulating that “the
competent jurisdiction to hear any dispute or challenge that may arise from the
application or interpretation of the Memorandum of Understanding and its annex can
only be an arbitral tribunal under the aegis of the International Chamber of Commerce
and its arbitration rules,” and under Article 13 paragraphs 1 and 2 of the UAA, any State
court to which such dispute has been referred must decline jurisdiction. It is, therefore, in
violation of the provisions set out above that a Court of Appeal has declared itself
competent to rule on the merits of the case notwithstanding the existence of the
arbitration clause, and its decisions must be overturned. (22)
The nullity of a company’s General Assembly resolutions is well governed by the
stipulation of the articles of association according to which “any disputes over the
application of these, either between partners or between one of them and the company,
will be resolved exclusively through arbitration,” without any distinction between legal

4
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 acts of public order and others. As a result, the judge must declare himself incompetent.
(23)
The judge who, in the presence of express contractual stipulations submitting any dispute
“to arbitration under the rules of the South African Arbitration Foundation in Sandton,
Gauteng, South Africa,” stated that since the dispute arose of the contractual non-
performance in case of force majeure, the competent judge is that of the place of
performance, to retain the jurisdiction of the Malian courts has disregarded the
provisions of Article 13 of the UAA since, by these stipulations, the parties have
unequivocally chosen arbitration as the only way to resolve their disputes; judgment
overturned. On the novo review, the appeal is admissible in form but on the merits, and
for the same reasons as those which led to the cassation, the judgment must be
overturned, and the objection to jurisdiction is founded. (24)
[vi] No Waiver of Arbitration
The willingness of the parties to waive the arbitration agreement contained in a contract,
when it is tacit, can only be manifested once the dispute has arisen. Moreover, it must be
certain, i.e., the result of acts clearly and unequivocally demonstrating the intention of
the party against whom it is opposed, to waive the arbitration clause and to accept the
jurisdiction of the state court. Breaking a contract cannot in itself, in the absence of an
unequivocal manifestation of will in this sense, characterize a tacit waiver of that
arbitration agreement. In the case at hand, for the respondent, such a will could only be
manifested by the unqualified acceptance of the debate on the merits before the state
judge by the claimant, on the understanding that such a procedural attitude, under
paragraph 2 of Article 13 of the UAA implies a tacit waiver of the arbitration agreement
and acceptance of the jurisdiction of the state judge. The state judge was therefore wrong
to dismiss the objection of lack of jurisdiction raised as ill-founded and to retain their
jurisdiction, holding that “the parties had voluntarily waived their right to refer the
dispute to arbitration, Company [A.] for breaking the contract without implementing the
arbitration procedure and the Company [B.] for taking the matter to the Commercial
Court.” The challenged judgment must be overturned in all its provisions and, ruling
again, the Court of Appeal must declare itself incompetent. (25) The reasoning of the
Court of Appeal as to the impossibility of implicitly waiving the arbitration clause before
the litigation arises is justified, but in the presence, in the case at hand, of a clause
providing for institutional arbitration under the CCJA Rules, it is Article 23 of the Treaty
which should have been targeted to justify the rejection of the alleged implied waiver, as
the UAA does not apply to institutional arbitration under the CCJA Rules. (26)
[vii] Arbitration Clause Providing for State Courts Only as a Last Resort
In the interpretation of agreements, it is necessary to seek the common will of the
parties. The clause of a contract stating that all disputes relating to the contract “can be
settled by arbitration” must be considered as a whole, and it must be remembered
that the dispute may be referred to state courts “only as a last resort.” The trial judge
was, therefore, right in declining jurisdiction under Article 13 of the UAA, and the
judgment must be upheld. (27) A reading of the entire clause makes it clear that the
parties have not planned to settle their possible disputes only by arbitration:
Any dispute relating to the contract must be settled amicably and by direct
negotiation between the client and the contractor. If negotiations fail, these
disputes may be resolved through arbitration. The arbitration panel will be
composed as follows, the arbitrator appointed by the client, the arbitrator
appointed by the contractor, the arbitrator jointly appointed by the client and
the contractor. In the absence of settlement by arbitration, disputes will be
decided as a last resort by the competent courts of Ouagadougou.
By its decision, the Court of Appeal clarified the intention of the parties, recalling that
recourse to state courts was only provided, in this case, after the failure of a friendly
settlement or arbitration. Therefore, the trial judge declared themselves incompetent
because their jurisdiction was subsidiary. But such clause is to be avoided because the
condition “in the absence of a settlement by arbitration” is ambiguous: it can only be
understood in the case where arbitration, for one reason or another could not be
implemented, because once an arbitral tribunal will have ruled, the dispute will have
been “settled by arbitration.”
[viii] Validity of the Arbitration Clause not Reiterated in Successive Agreements in the
Absence of Novation
Can an arbitration clause, which has not been reiterated in successive agreements of the
parties, remain valid and enforceable in the absence of novation of the contract? The
Court of Appeal of Ouagadougou (Burkina Faso) answered yes. In its ruling, the Court held
that the existence of a transaction does not preclude invoking the provisions of the
original contract, which remains the source of relations between the parties who must
execute it in good faith in accordance with the provisions of Article 1134 of the Civil Code.
The appellant was, therefore, right to have availed themselves of the arbitration clause
under the medium-term credit agreement to object to the jurisdiction of the higher court.
In addition, the trial judge violated Article 13 of the UAA, and the judgment must be

5
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 overturned. Ruling again, the commercial courts of Burkina Faso must decline
jurisdiction. (28)

[ix] Disputes Submitted to Arbitration

If the parties have agreed to submit “all disputes” to arbitration, the state court to which
a party has referred a dispute involving the enforcement of a mortgage through
foreclosure to must, under Article 13 of the UAA, declare itself incompetent. (29)
[x] Implementation of the Objection to Jurisdiction
In any event, the state court to which a dispute governed by an arbitration clause has
been referred must decline jurisdiction even where the case has not yet been referred to
an arbitral tribunal, (30) and where the dispute has already been referred to arbitration,
the state court before which a petition for interim or protective measures such as an
expertise order has been filed must decline jurisdiction if the requested measure will
prejudice the merits of the case. (31)
The state court to which a dispute governed by an arbitration clause has been referred
can decline its own jurisdiction only on the condition that one of the parties requests it,
(32) and the objection to the jurisdiction of the state court must be raised in limine litis.
(33) Where the petitioner has not complied with the provisions of Article 13 of the UAA,
paragraph 1, namely they failed to have raised the objection timely before the state
court, the appeal before the CCJA must be dismissed (34) because such failure can be
construed as a waiver of the arbitration clause, according to the ruling of the CCJA in
Société Navale Guinéenne v. Société Africaine de Commerce. (35)

However, the CCJA remains competent for an appeal against the decision of a Court of
Appeal, which ruled on the existence of an arbitration clause. (36)

[B] Under the CCJA Rules

The CCJA has often been often criticized for impartiality, especially because of its
“double hat” in managing arbitral proceedings and then ruling the on the merits where an
award is challenged. It has been said that it would not be impartial because of its acts as
judge and party. (37)
After the recent reform of the OHADA Arbitration Rules, it has been written: (38)
The same judges who, with an “administrative hat,” participate in the
constitution of the arbitral tribunal (first, as regards appointments, and then
with respect to challenges), opine on the prima facie existence of an
arbitration agreement, scrutinize the draft award and fix the arbitrators’ fees,
would later also consider, wearing their “judicial hat,” an annulment action
against, or a request for the enforcement of, an award.
The European Court of Human Rights in Strasburg, France, decided in 1995 in
Procola v. Luxembourg that one and the same organ could not render
administrative decisions and then render a judicial decision in that respect in
an impartial way. (39) This reasoning applies squarely to the judges at the
CCJA: there is an inherent risk and therefore a permanent doubt in the mind of
users of CCJA arbitration that the judges handing down the judicial decision will
feel bound by the previous administrative decisions of their colleagues at the
Court. It is that possible doubt, which is the problem for parties submitting
to the jurisdiction of CCJA arbitration.
Finally, in footnote n° 43 of the publication, the author indicates that “a strict separation
of functions and the instauration of ‘Chinese Walls’ therefore does not solve the basic
problem, contrary to what is sometimes suggested.” (40)
Paragraph 45 of the Procola judgment cited by the author reads as follows:
45. The Court notes that four members of the Conseil d’Etat carried out both
advisory and judicial functions in the same case. In the context of an institution
such as Luxembourg’s Conseil d’Etat the mere fact that certain persons
successively performed these two types of function in respect of the same
decisions is capable of casting doubt on the institution’s structural
impartiality. In the instant case, Procola had legitimate grounds for fearing
that the members of the Judicial Committee had felt bound by the opinion
previously given. That doubt in itself, however slight its justification, is
sufficient to vitiate the impartiality of the tribunal in question, and this makes
it unnecessary for the Court to look into the other aspects of the complaint.
(41)
The criticisms presented above call upon the following observations, in order to avoid
any confusion.

6
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 First, and contrary to the “judicial” and “administrative” decisions referred to by the
authors, the ECHR rather contrasted “advisory” functions with “judicial” functions in
Procola v. Luxembourg. (42) However, it is indisputable that the advisory and
administrative functions are not at all the same. The “advisory” functions of the CCJA
(which, rightfully, are not at all exercised in arbitration proceedings under the aegis of
the CCJA) must be distinguished from the “administrative” functions of the CCJA in matters
of arbitration, within the framework of which the restricted formations of the Court (43) do
not act as an advisory body. Indeed, the “advisory” function of the CCJA is always
performed in the Full Court (44) and is part of the judicial activity of the Court, unlike the
function of administration of arbitration proceedings, the purely administrative nature of
which emerges from Article 1 of the CCJA Regulation on Arbitration itself which provides,
on the one hand, that “The decisions that the Court makes in this regard to ensure the
implementation and the successful completion of arbitration proceedings and those
related to the review of the award, are administrative in nature,” (45) and on the other
hand that “The administrative decisions made by the Court are devoid of res judicata effect
and without appeal … .” (46) Article 2.2 of the same Regulation adds that “the Court
does not settle disputes itself. It appoints or confirms the arbitrators. It is informed of the
progress of the proceedings and examines draft awards.” (47)
Second, the Procola judgment only questioned the concurrently holding of the “advisory
function” (which for the CCJA is part of its “judicial” activity in accordance with the Treaty
and the Rules of Procedure of the CCJA) with the “judicial function.” The “advisory function”
of the CCJA, which is totally absent in arbitration, is not akin to an “administrative
function,” and the Procola judgment of the ECHR, which has castigated the concurrently
holding of “advisory” and “judicial” functions, seems to be an irrelevant argument as used
by the above authors and cannot validate the criticisms presented.
Finally, there are several precedents in comparative law that seem to be closer to the
operation of the CCJA and its arbitration center. For example, the Cassation Court of
France held that the judgment on the merits in which a magistrate participated who had
ordered, in the same case, an interim measure not prejudicing the merits, corresponds to
a judgment rendered by an independent court. (48) On March 11, 2009, the same
Cassation court of France, held that the decision ruling on the motion for the annulment
of an arbitral award, in which participated a magistrate who was on the date of that
award secretary-general of the Court of Arbitration of the International Chamber of
Commerce was not rendered by a biased court, because, in their capacity as secretary-
general of the ICC Court, that magistrate had exercised only the functions of organizing
arbitration, had no jurisdictional powers and had not intervened in the judicial mission of
the arbitrators. (49)
The decision of March 11, 2009 above is very relevant insofar as the situation at issue
before the Cassation Court is similar to that of the CCJA in matters of arbitration. It is
interesting to note that this judgment has been widely commented on, and none of the
four authors commenting on it clearly disapproved of the decision of the French
Cassation Court. For one commentator, the argument that the Court, in violation of Article
6 paragraph 1 of the European Convention on Human Rights, was composed, in particular
of a magistrate, former secretary-general of the ICC Court of Arbitration, under the
auspices of which the award was rendered, which could raise a legitimate doubt as to the
impartiality of the said magistrate, is “not serious and even somewhat improper,” since
the institution only assists the administration of arbitration under its aegis and does not
judge cases. (50)
Similarly, another author wrote that “the argument lacks seriousness in the sense that the
award is rendered by the arbitrators appointed either by the parties themselves or by
the Court on their delegation. At no time does the secretary-general interfere in the
arbitration process, disrupt it or participate in it.” (51) Commenting on the same
judgment, a third author wrote that “the arbitration center organizes and maintains the
police while the arbitral tribunal settles the dispute between the parties.” (52) Likewise,
the CCJA, in performing its administrative duties in arbitration matters, only “organizes”
arbitration proceedings and “maintains the police” (53) and does not “settle” the dispute
of the parties, which is the sole prerogative of the arbitral tribunal.
In light of these observations, it should also be noted that the French Cassation Court has
held that:
The requirement of independence and impartiality of the arbitrator falls
under the control of the judge of the regularity of the award, since the
arbitration center can only contract, as to the guarantee of these essential
qualities of arbitrators, an obligation of means (54) possibly sanctioned by its
responsibility; that the judges of the merits noted that “the ICC’s arbitration
rules ensured the distinction between the function of organization of the
arbitration, in particular through the ‘International Court of Arbitration,’ and
the judicial function, left to arbitrators, the ‘court’ having no jurisdictional
powers.” In this regard, the Court of Appeal was correct in concluding that the
communication of the draft award to the International Court of Arbitration did
not interfere with the arbitrator’s judicial mission but was only aimed at
ensuring the effectiveness of arbitration. Thus, the Court of Appeal rightly
deduced from its statements the lawfulness of the contract for the

7
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 organization of arbitration in relation to the requirements of international
public order. (55)
In any event, the CCJA arbitration system can be improved; without even waiting for a
possible future reform and if this can help to blur some criticisms and further reassure
the “users” of institutional arbitration under its aegis, the CCJA could, after deliberation
in the General Assembly, decide that when it rules in litigation on the petition to annul an
award rendered under its aegis, the three judges who have composed the restricted
panel that administered the arbitration proceedings will recuse themselves. This
measure, which in principle should not require the meeting of the Council of Ministers,
would not hinder the functioning of the plenary session of the CCJA since there would still
be ten other judges each time to rule on the cases concerned.

References
1) Société Construction métalliques Ivoiriennes v. Fraternité Saint Jean Eudes d’Abatta,
N° 062/2012, Decision, [C.C.J.A.], 3e ch., (Jun. 7, 2012),
http://www.ohada.com/jurisprudence/ohadata/J-14-167.html.
2) CCJA Regulation on Arbitration, Art. 16, para. 1.
3) Supra, Introduction, fn. 10.
4) Id., fn. 22, 23.
5) See supra, Chapter 5, §5.01[B].
6) UAA, Art. 14, para. 2.
7) See Born, Gary B., The Principle of Judicial Non-Interference in International Arbitral
Proceedings (Nov. 15, 2011). University of Pennsylvania Journal of International Law,
Vol. 30, No. 4, 2009, at 1020. Available at SSRN: https://ssrn.com/abstract=1959827.
(Born, 2009).
8) See supra, Chapter 3, §3.04[G].
9) See infra, Chapter 14 on the grounds for the annulment of an award.
10) supra, Chapter 1, fn. 22.
11) Ousseini v. Délégation de l’Union Européenne au Niger, N° 152/2018, Decision,
[C.C.J.A.], 3e ch., (Jun. 7, 2018). The CCJA added that the judgment is wrongly criticized
for having, on the basis of the arbitration clause contained in the contract, declined
the jurisdiction of the Court of Appeal and for having thus failed to rule on certain
claims, while para. 2 of the arbitration clause makes the Niamey labor court
competent for any dispute relating to the contract; that finally, this arbitration
clause is manifestly null in that it departs from Art. 6 of the Civil Code and the public
policy provisions of the Labor Code and cannot, in any way, justify the incompetence
of the labor court. This is so since it is established that upon the claimant’s referral
to the labor court, the respondent objected to jurisdiction; that the Court of Appeal,
to which this count was not referred, did not find the arbitration clause manifestly
void.
12) La Société Bougainvilliers v. Mochet, N° 069/2015, Decision, [C.C.J.A.], Ass. plen., (Apr.
29, 2015), http://www.ohada.com/jurisprudence/ohadata/J-16-71.html. The Court of
Appeal of Dakar (Senegal) held that “the parties who claim that the arbitration
agreement is void and sought its cancellation, executed it in part by participating in
the pre-arbitration conference, appointing an arbitrator and filing their brief, and
even wished to extend the arbitration to others who are not parties to the arbitration
agreement.” On appeal against that ruling, the CCJA held that Arts. 11 and 4 of the UAA
establish the “competence-competence” principle of the arbitrators and the principle
of the validity of the arbitration agreement which must be assessed, without
reference necessary to a state law, thus according to the common will of the parties.
The Court of Appeal which refused to set aside the arbitral awards subject to its
censorship on the grounds that the arbitral tribunal had, out of its judicial discretion,
deduced from the facts of the case, including the desire to “extend arbitration to
others who [were] not parties to the arbitration agreement,” a common will of the
parties to accept the said arbitration notwithstanding the cancellation of the current
account agreement, did not in any way violate the law.
13) UAA, Art. 11, para. 2.
14) CA Centre, Sept. 30, 2009, N° 381/Civ., supra, Chapter 1, fn. 10.
15) Wanmo v. Nguessi, N° 151/2017, supra, Chapter 2, fn. 21.
16) Oryx Bénin v. Société Africaine de Distribution et de Négoce, N° 154/2016, Decision,
[C.C.J.A.], 3e ch., (Oct. 27, 2016), http://www.ohada.com/jurisprudence/ohadata/J-17-
94.html. The CCJA held that a Court of Appeal which upheld an arbitral award
rendered did not violate Art. 11, para. 1 of the UAA where the exclusive commercial
distribution agreement of the parties contained a clause under which any dispute
between them would be settled by an arbitral tribunal, in the absence of an
amicable agreement all the parties have each signed the said contract in their
various documents, including in the mission letters issued to the ad hoc arbitral
tribunal.

8
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 17) Canac Sénégal v. Transrail, N° 082/2014, Decision, [C.C.J.A.], 2e ch., (May 22, 2014),
http://www.ohada.com/jurisprudence/ohadata/J-15-173.html.
18) CA Abidjan, Jul. 8, 2011, N° 260/11, (Ivory Coast),
http://www.ohada.com/jurisprudence/ohadata/J-13-192.html.
19) Liquidation Société Cim Sahel Energie v. Les Ciments du Sahel, N° 047/2015,
Decision, [C.C.J.A.], Ass. plén., (Apr. 27, 2015),
http://www.ohada.com/jurisprudence/ohadata/J-16-47.html.
20) United Bank for Africa v. Beneficial Life Insurance, N° 018/2015, Decision, [C.C.J.A.], 2e
ch., (Apr. 2, 2015), http://www.ohada.com/jurisprudence/ohadata/J-16-18.html.
21) Sarr v. Mutuelle d’Assurances des Taxis Compteurs d’Abidjan, N° 043/2008, Decision,
[C.C.J.A.], 1e ch., (Jul. 17, 2008), http://www.ohada.com/jurisprudence/ohadata/J-09-
81.html.
22) Société de Manufacture de Caoutchouc de Côte d’Ivoire v. May, N° 012/2005,
Decision, [C.C.J.A.], 1e ch., (Feb. 24, 2005),
http://www.ohada.com/jurisprudence/ohadata/J-05-357.html.
23) Tribunal de Grande Instance [TGI] [high court] Wouri, Jun. 3, 2011, N° 640, (Cameroon),
http://www.ohada.com/jurisprudence/ohadata/J-12-212.html.
24) Nedbank v. Grands Moulins du Mali, N° 244/2018, Decision, [C.C.J.A.], 2e ch., (Nov. 29,
2018).
25) CA Pointe-Noire, Nov. 7, 2008, N° 046, (Congo),
http://www.ohada.com/jurisprudence/ohadata/J-13-76.html.
26) Société Nationale Pour la Promotion Agricole v. Société des hydrocarbures du Bénin,
N° 045/2008, Decision, [C.C.J.A.], Ass. plen., (Jul. 17, 2008),
http://www.ohada.com/jurisprudence/ohadata/J-09-83.html; Ekwa Ngalle v. Société
Nationale d’Hydrocarbures, N° 102/2015, supra, Chapter 2, fn. 31; Republique de
Guinee v. Getma International, N°139/2015, Decision, Cour Commune de Justice et
d’Arbitrage [CCJA] [Common Court of Justice and Arbitration] [C.C.J.A.], (Nov. 19, 2015),
http://www.ohada.com/jurisprudence/ohadata/J-16-132.html.
27) CA Ouagadougou, May 19, 2006, N° 116, (Burkina Faso),
http://www.ohada.com/jurisprudence/ohadata/J-09-25.html.
28) CA Ouagadougou, Mar. 21, 2008, N° 028, (Burkina Faso),
http://www.ohada.com/jurisprudence/ohadata/J-12-133.html.
29) Tribunal de Grande Instance [TGI] [high court] Mifi, Aug. 1, 2006, N° 79/civ.,
(Cameroon), http://www.ohada.com/jurisprudence/ohadata/J-07-70.html.
30) Tribunal de Grande Instance [TGI] [high court] Ouagadougou, Sept. 28, 2005, N°
416/2005, (Burkina Faso), http://www.ohada.com/jurisprudence/ohadata/J-07-
114.html.
31) See Ascot Commodities v. Dieye, N° 125/2016, Decision, [C.C.J.A.], 2e ch., (Jun. 23, 2016),
http://www.ohada.com/jurisprudence/ohadata/J-17-66.html, in which the CCJA ruled
that under Art. 891.3 of the Senegalese Code of Civil Procedure, the State Court may
take interim or provisional measures when a dispute has been referred to an arbitral
tribunal, provided that these measures do not prejudice the merits. In the case at
hand, the expertise ordered by the first judges tended not only to safeguard the
rights of the defendant, but to rule on the quantum of the remainder of the debt
owed. The arbitral tribunal having had to rule on this point, the expert opinion was
wrongfully ordered; therefore, the request for an opinion order must be rejected.
32) Feby Konan v. Haidar, N° 009/2006, Decision, [C.C.J.A.], 1e ch., (Jun. 29, 2006),
http://www.ohada.com/jurisprudence/ohadata/J-07-23.html.
33) TPI Douala Bonanjo, Jul. 19, 2012, N° 714/Civ., (Cameroon),
http://www.ohada.com/jurisprudence/ohadata/J-14-48.html. In particular, the court
held that the incompetence of a state court dealing with a dispute despite the
existence of an arbitration agreement between the parties is merely relative and
must be raised in limine litis. The exception of incompetence raised after the parties
have submitted their arguments on the merits is inadmissible. [Emphasis added].
34) Feby Konan v. Haidar, supra, Chapter 5, fn. 32.
35) Société Navale Guinéenne v. Société Africaine de Commerce, N° 047/2010, Decision,
[C.C.J.A.], 2e ch., (Jul. 16, 2010), http://www.ohada.com/jurisprudence/ohadata/J-12-
95.html. The CCJA held that by raising, for the first time, in cassation before the CCJA,
the incompetence of the CCJA based on an arbitration clause, even though it is
generally accepted in arbitration matters that, in a dispute to be submitted to an
arbitral tribunal under an arbitration agreement, if the claimant takes the matter to
a state court in spite of this agreement and the respondent does not raise the
incompetence of that jurisdiction, it is because the parties have waived their
arbitration agreement, the objection to the jurisdiction of the CCJA, is a new
argument which, as such, must be declared inadmissible.
36) See Ousseini v. Délégation de l’Union Européenne au Niger, N° 152/2018, supra,
Chapter 5, fn. 11, where the CCJA held that The inadmissibility of an appeal, raised on
the ground that since the dispute had not yet been referred to an arbitral tribunal,
the referral to the CCJA, which is a cassation court and that this procedural
irregularity violates the principle of double degree of jurisdiction must be dismissed,
as the appeal is lodged against the decision of a Court of Appeal ruling on the
interpretation of the provisions of the UAA in relation to the existence of an
arbitration clause. The CCJA being the cassation court in this matter, the appeal is
admissible. The principle of “double degree of jurisdiction” originates form the civil
law concept “principe du double degré de juridiction.” See the glossary, infra.

9
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 37) See Frédéric Maury, Affaire Getma-Guinée: les arbitres répondent,
http://www.jeuneafrique.com/285543/societe/affaire-getma-guinee-les-arbitres-
repondent/ [accessed Dec. 22, 2016, at 11:30] (Maury F., 2015). The author reported an
open letter by which the three arbitrators involved in the Getma case alleged that
the CCJA, as a court of law, is judge of its own action as an arbitral institution (“La
Cour, comme juridiction, est juge de sa propre action comme institution d’arbitrage”). I
have previously published the analysis appearing under this section of the book
(§5.04[B]) in Mahutodji Jimmy Vital Kodo (Dir.), Code Pratique Francis Lefebvre OHADA.
Traité, Actes Uniformes et Règlements Annotés, 20-21, 212-213, Editions Francis
Lefebvre, 2019. (Kodo, Al Dabbagh, & Boismain, 2019); reproduced with the
permission of Editions Francis Lefebvre.
38) Michael W. Bühler, Out of Africa: The 2018 OHADA Arbitration and Mediation Law
Reform, 35 J Int’l Arb. 527 (2018). [Emphasis added]. (Bühler, 2018). See also Michael W.
Bühler, Anne-Sophie Gidoin, Le défi de la complémentarité entre le juge et l’arbitre
dans l’espace OHADA, Penant, n° 904, 2018, p. 293-294. (Bühler Michael W., 2018).
39) Procola v. Luxembourg, App. N° 14570/89, Eur. Ct. H.R.,
http://hudoc.echr.coe.int/eng?i=001-57944 [accessed 27, 2020. at 12:48].
40) Büehler, supra, supra, Chapter 5 fn. 38, referring to Kodo/Aka, The CCJA as a Regional
Arbitration Institution, in The Transformation of Arbitration in Africa: The Role of
Arbitral Institutions 47, 56 (E. Onyema ed., Kluwer Law International 2016). (Kodo
Mahutodji Jimmy Vital, 2016).
41) Procola v. Luxembourg, supra, Chapter 5, fn. 39. [Emphasis added].
42) Id.
43) While handling arbitration matters in its capacity as an arbitral institution, the CCJA
acts through restricted formations (“formation restreintes”) usually formed of three-
judge panels appointed each year. See the glossary, infra.
44) “Full Court” refers to the meeting of all the judges of the court. See the glossary, infra.
45) CCJA Regulation on Arbitration, Art. 1.1, para. 2. [Emphasis added].
46) Id., Art. 1.1, para. 6. [Emphasis added].
47) Id., Art. 2.2. [Emphasis added].
48) Cour de cassation [Cass.] [supreme court for judicial matters] 2e civ., Jan. 24, 2014 n°
12-01345 (Fr).
49) Cour de cassation [Cass.] [supreme court for judicial matters] 1e civ., Mar. 11, 2009 n°
08-12149; D. 2009, Somm. 880, obs. X. Delpech (Fr.), (Xavier, 2009); Gaz. Pal. 2009, 1309
note G. Huchet (Fr.); Petites Affiches [PA] 2009 n° 144 p. 20 note C. Tse (Fr.); JCP E. 2009,
1781, chr. n° 10 obs. C. Seraglini (Fr.). [Emphasis added].
50) Christophe Seraglini, Mauvais procès quant à l’impartialité d’un magistrat, JCP E. 2009,
1781, chr. n° 10 at 24. (Seraglini, 2009).
51) Guillaume Huchet, Gaz. Pal. 2009, 1311. (Huchet, 2009).
52) Christophe Tse, Mais jusqu’où ira-t-on ? Après les arbitres et les centres d’arbitrage, on
s’en prend au juge de l’annulation …, Petites Affiches [PA] 2009 n° 144 p. 21 (Fr.).
(Christophe, 2009).
53) It must be emphasized that the arbitral tribunal itself has the power to “maintain the
police” of the hearings and all the meetings relating to the arbitration proceedings.
Such “police powers” of the tribunal can be seen through Art. 19.1, para 6 which states
that “The hearing of the parties takes place on the day and place set by the arbitral
tribunal,” and more relevant, Art. 19.5, para. 1 which states that “the arbitral tribunal
invites the parties to the hearings, the conduct of which are regulated by the tribunal
… .” [Emphasis added].
54) See the glossary, infra.
55) Cour de cassation [Cass.] [supreme court for judicial matters] 1e civ., Feb. 20, 2001 n°
99-12574 (Fr). [Emphasis added].

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

10
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 6: Evidence and Discovery

This chapter will present the disclosure and discovery powers of an arbitral tribunal
Publication (§6.01) and the role of national courts in obtaining evidence for the arbitration
proceedings (§6.02).
Arbitration in Africa under
OHADA Rules §6.01 DISCLOSURE AND DISCOVERY POWERS OF THE ARBITRAL TRIBUNALS
[A] Under the UAA
Organization
Before mentioning the specific powers of the arbitral tribunal under the UAA, it must be
Cour Commune de Justice recalled that an arbitral tribunal may proceed with the arbitration as it deems
et d’Arbitrage de appropriate if the parties have not determined applicable procedural rules (1) and that
l’Organisation pour the parties bear the burden of alleging and proving the facts supporting their claims. (2)
l’Harmonisation en Afrique Under Article 14 of the UAA, arbitral tribunals have three main investigative prerogatives.
du Droit des Affaires
First, an arbitral tribunal “may invite the parties to provide it with factual explanations
and to submit to it, by any legally admissible means, the evidence it deems necessary for
the resolution of the dispute.” (3) When the tribunal goes this route, it is under the duty to
Bibliographic reference ensure due process, adversarial proceedings since it can neither retain in its ruling, the
'Chapter 6: Evidence and arguments, explanations or evidence submitted or relied upon by a party, only if the
Discovery', in Mahutodji other party has been in a position to discuss them, (4) nor can it base its ruling on sua
Jimmy Vital Kodo , sponte evidence without collecting comments of the parties or at least inviting them
Arbitration in Africa under beforehand to submit them. (5)
OHADA Rules, (© Kluwer
Law International; Kluwer
Law International 2020) pp. Second, the arbitral tribunal has the power, unless the parties have decided otherwise,
75 - 78 to settle any incidental claims concerning the verification of the authenticity of
documents or forgery. (6) No available case at this stage illustrates the implementation
of these powers that arbitrators will have to exercise with discretion but reasonably.
Finally, the arbitral tribunal may, where necessary and after consulting the parties or
upon their request, appoint one or more experts to report on specific issues it
determines and hear them at the hearing. (7)
In Oryx Bénin v. Société Africaine de Distribution et de Négoce, the CCJA held that the party
which had not cooperated with the expert whose appointment it had requested, as an
interlocutory measure from the arbitral tribunal, and which has refrained from
commenting on the report of the expert at the request of the tribunal as well as on the
observations of the opposing party could not validly reproach the confirmatory judgment
of the awards at issue for the failure to respond to the submissions in violation of Article
26 of the UAA. (8) In other words, once the tribunal orders an investigative measure, such
as an expertise like in the case at hand, the parties must comply with the measure. Also,
the CCJA teaches us in Prévoyance Assurances v. Eiffage Sénégal that, like a judge, an
arbitrator is not bound by the findings of the expert they have appointed. (9)

[B] Under the CCJA Rules

Under the CCJA Rules, an arbitral tribunal also has investigative powers similar to those
governed by the UAA.

First, the tribunal may decide, on its own motion, to hear the parties, (10) which can be
done, at the discretion of the tribunal, separately if deemed necessary and in the
presence of both parties’ counsel. (11) Such witness hearings take place on the date and
place decided by the tribunal. (12)
Second, the tribunal uses its discretion in determining the admissibility of the evidence
submitted by the parties and in assessing their probative force. (13)
Third, the tribunal “may also decide to hear witnesses, experts appointed by the parties
or any other person, in the presence of the parties, or in their absence provided that they
have been duly summoned.” (14)
Finally, the arbitral tribunal may, unless the parties agree otherwise, appoint one or
more experts to report on specific issues it will determine and invite the expert(s) to
testify at the hearing. If necessary, the arbitral tribunal may require a party to provide
the expert with all appropriate information or to submit or make available to the expert,
for scrutiny, any exhibits or other relevant items. (15) The new version of the CCJA
Regulation on Arbitration, in Article 19.4, now indirectly limits the power of an arbitral
tribunal to appoint experts and define their mission and hear them at hearings. The
parties can now limit or even deny this possibility by an agreement because the
investigatory powers of an arbitral tribunal are not obligations imposed on the

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 arbitrators to order specific measures. In Pyramidion v. Agence d’Exécution des Travaux
d’Infrastructure du Mali, it was held that under Article 19 of the CCJA Regulation on
Arbitration, it is the prerogative the arbitral tribunal to assess the suitability of
appropriate investigative measures to resolve the dispute, such as the hearing of a
witness. Neither the transcript of the witness statements nor the establishment of the
minutes of the hearing constitutes an obligation imposed on the arbitral tribunal by the
CCJA Regulation on Arbitration, to which the parties have agreed to submit their dispute.
Therefore, the arbitrators cannot be criticized for not having carried out these
formalities. (16) The discretionary nature of the power of the arbitral tribunal in using its
investigatory prerogatives, such as in the appointment of an expert, has been affirmed
several times, like in Etat du Mali v. Groupe TOMOTA, (17) and in Benin Control v. Etat du
Bénin. (18)

§6.02 ROLE OF NATIONAL COURTS IN OBTAINING EVIDENCE FOR THE

ARBITRATION PROCEEDINGS
[A] Under the UAA
Article 14, paragraph 12 of the UAA, states that “where the assistance of judicial
authorities is necessary for the taking of evidence, the arbitral tribunal may, sua sponte
or upon request, seek the assistance of a competent court in the State Party.”
On the taking of evidence, the arbitral tribunal is entitled to seek, on its own motion or on
request, the assistance of the competent court. The available cases prior to the reform,
which remain transposable except in specific cases, do not seem to have already
decided on the practicalities of such collaboration between the arbitral tribunal and the
competent court. Nevertheless, the subject is worthy of interest, particularly with regard
to referral to the competent court, since the arbitral tribunal is allowed to refer to the
competent court if necessary. Thus, it is necessary to determine how the arbitral tribunal
will refer the matter to the competent court. Since the arbitral tribunal does not have the
possibility of asking a preliminary question to the competent court, it will have to use
ordinary ways to refer to the said court, probably a motion or petition.
Also in this case, and if, as it is likely to be the case, the competent court must be
referred to by means of a lawyer, it must also be determined whether the arbitral
tribunal should resort to a lawyer since counsel of the parties would be conflicted and
may not represent the arbitral tribunal at the same time. If the arbitral tribunal is to use
its own counsel in order to be able to “interrogate” the competent court, the question of
the fees and costs of this incidental procedure, which would be added to the original
procedure, will also have to be resolved. What would be the methods of settlement of
these costs by the parties? Who would determine them? Etc. Perhaps it would be easy to
get these costs settled by the parties or the only party that raised the matter before the
national judge; but the issue would be more complex if the arbitral tribunal decided on
its own motion to refer the matter to the competent court, as Article 14 allows. Arbitrators
will ensure as much as possible to avoid or at least limit any recourse to the court to this
effect. They may also, if the difficulty is foreseeable, make arrangements upstream and in
agreement with the parties during the preliminary hearing.

[B] Under the CCJA Rules

Under the CCJA Arbitration Rules, there is no specific reference to national courts in
obtaining evidence, probably because of the supranational nature of the CCJA itself
under the Treaty. That is probably the reason why the OHADA Legislator ensured
arbitration proceedings could be carried out without the need to refer any issue to
national courts. Theoretically, however, it does not seem absolutely impossible that the
support of a national court becomes needed in some proceedings, and the CCJA will have
to set the guidelines, should the issue be raised in the future.

References
1) UAA, Art. 14, para. 2.
2) Id., para. 3.
3) Id., para. 9.
4) Id., para. 10.
5) Id., para. 11.
6) Id., para. 14.
7) Id., para. 15.

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 8) Oryx Bénin v. Société Africaine de Distribution et de Négoce, supra, Chapter 5, fn. 16.
The CCJA ruled that the party which has not cooperated with the expert whose
appointment it has requested, as an interlocutory measure, from the arbitral tribunal
and which has refrained from commenting on the report of the expert at the request
of the tribunal as well as on the observations of the opposing party cannot validly
reproach the confirmatory judgment of the awards at issue for the failure to respond
to the submissions in violation of Art. 26 of the UAA. This is so since, contrary to the
allegations of the plaintiff in the appeal, the defendant company, in its mission letter
addressed to the ad hoc arbitral tribunal, requested, as an interlocutory measure
before judgment, an accounting and financial expertise of the operations carried out
by the two parties, from the signature of their contract to the occurrence of dispute;
that it is on the basis of the two mission letters that the arbitration rules were
proposed by the ad hoc arbitral tribunal and approved by the two parties; that under
Art. 9 of the said rules of arbitration, the arbitral tribunal ad hoc ordered the expert
opinion by interim Judgment No. 03/2012; that following this decision ordering the
appraisal of the accounts, it is not disputed on the one hand, that the plaintiff
company refrained from providing the designated expert with the documents in its
possession to facilitate the work of the expert and, on the other hand, that it did not
comment either on the report as requested by the ad hoc arbitral tribunal or on the
observations of the defendant company relating to the report which were been
communicated.
9) Prévoyance Assurances S.A. v. Eiffage Sénégal, supra, Chapter 3, fn. 39, ruling that in
order to determine the quantum of compensation, an arbitral tribunal, like any judge
on the merits, is in no way bound by the opinion that an expert would record in his
report, even at the request of the arbitrator.
10) CCJA Regulation on Arbitration, Art. 19.1, para. 2.
11) Id., Art. 19.1, para. 5.
12) Id., Art. 19.1, para. 6.
13) Id., Art. 19.1, para. 3.
14) Id., Art. 19.2.
15) Id., Art. 19.4.
16) Pyramidion v. Agence d’Exécution des Travaux d’Infrastructure du Mali, N° 098/2014,
Decision, [C.C.J.A.], Ass. plén., (Oct. 30, 2014),
http://www.ohada.com/jurisprudence/ohadata/J-15-189.html.
17) Etat du Mali v. Groupe TOMOTA, N° 033/2015, Decision, [C.C.J.A.], Ass. plén., (Apr. 23,
2015), http://www.ohada.com/jurisprudence/ohadata/J-16-33.html.
18) Benin Control v. Etat du Bénin, N° 103/2015, Decision, [C.C.J.A.], Ass. plén., (Oct. 15,
2015), http://www.ohada.com/jurisprudence/ohadata/J-16-96.html.

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 7: Provisional Measures

The three main sections of this chapter will focus on the provisional measures ordered by
Publication an arbitral tribunal (§7.01), the judicial enforcement of the provisional measures ordered
by arbitrators (§7.02) and the provisional measures ordered by national courts in aid of
Arbitration in Africa under arbitration (§7.03).
OHADA Rules
§7.01 PROVISIONAL MEASURES ORDERED BY THE ARBITRAL TRIBUNAL
Organization [A] Under the UAA
Cour Commune de Justice Article 14 of the UAA empowers an arbitral tribunal to order some provisional measures
et d’Arbitrage de where needed. It states in its last paragraph that “the arbitral tribunal may also, upon
l’Organisation pour the request of either party, order interim or conservatory measures, with the exception of
l’Harmonisation en Afrique interim attachments and judicial sureties which remain within the jurisdiction of state
du Droit des Affaires courts.” Illustrating the limitation of the power of an arbitral tribunal when ordering
provisional measures, the CCJA held, in Fowe v. Banque Internationale du Cameroun pour
l’Epargne et le Crédit, that arbitral justice, unlike state courts, does not have jurisdiction
Bibliographic reference for enforcement measures such as attachment of real estate or foreclosure of a mortgage.
(1)
'Chapter 7: Provisional
Measures', in Mahutodji Measures likely to be ordered by a tribunal are, among other, bailiff reports, (2)
Jimmy Vital Kodo , mandatory injunctions, (3) injunctive reliefs, (4) order of some advance payments,
Arbitration in Africa under temporary authorization for some construction work. The same comments and
OHADA Rules, (© Kluwer suggestions regarding the forecast of the possible costs of provisional measures that the
Law International; Kluwer tribunal may have to order at the request of one or more parties (5) apply here. Parties
Law International 2020) pp. would do well in providing, at the outset of the procedure, for the mechanisms for
79 - 82 financing and allocating the costs relating to these various measures. (6)

[B] Under the CCJA Rules

Like the UAA, Article 10-1 of the CCJA Regulation on Arbitration states, about the
provisional measures, that “unless otherwise stipulated, the arbitration agreement
confers jurisdiction on the arbitral tribunal to rule on any claim for provisional or
conservatory measures during the arbitration proceedings, with the exception of claims
relating to court-ordered securities and interim attachments.” Under the CCJA Regulation
on Arbitration, the limitation to the power of an arbitral tribunal to order enforcement
measures, as highlighted in Fowe v. Banque Internationale du Cameroun pour l’Epargne et
le Crédit, (7) also apply because the rules are similar on this issue.

§7.02 JUDICIAL ENFORCEMENT OF PROVISIONAL MEASURES ORDERED BY

ARBITRATORS
Under the UAA, judicial enforcement of interim provisional measures ordered by an
arbitral tribunal will be subject to exequatur by the national competent courts, under
Article 30 of the UAA. (8)
Under the CCJA Regulation on Arbitration, a request for exequatur may be filed
immediately where exequatur is required for the enforcement of any interim provisional
measure ordered by an arbitral tribunal. (9) Also, the motion for exequatur is filed before
the President of the CCJA, (10) and the decision on exequatur of the awards relating to
provisional or conservatory measures must be made within three (03) days of the filing of
the motion to the Court.

§7.03 PROVISIONAL MEASURES ORDERED BY NATIONAL COURTS IN AID OF

ARBITRATION
As it was already highlighted, (11) “the existence of an arbitration agreement does not
preclude a State court, at the request of a party and in the event of a recognized and
reasoned emergency, from ordering provisional or conservatory measures so long as such
measures do not imply a review of the merits of the case, for which only the arbitral
tribunal has jurisdiction.”
Under the CCJA Rules, provisional measures may be ordered by state courts, upon
request by parties, only “before the file is handed over to the arbitral tribunal and,
exceptionally thereafter, if the urgency of the provisional or conservatory measures
requested does not allow the arbitral tribunal to rule promptly … .” (12) the parties may
apply to the competent state court for such measures. In all cases, the applications and
measures taken by the competent state court must be immediately notified to the
secretary-general, who informs the arbitral tribunal. (13)

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 References
1) Fowe v. Banque Internationale du Cameroun pour l’Epargne et le Crédit, N° 119/2019,
Decision, [C.C.J.A.], 3e ch., (Apr. 11, 2019).
2) From the French “constat d’huissier”; see the glossary, infra.
3) From the French “Injonction de faire”; see the glossary, infra.
4) From the French “Injonction de ne pas faire”; see the glossary, infra.
5) See supra, Chapter 6, §6.02[A].
6) See, for the enumeration of some of these measures in French law, which is quite
similar, Cécile Chainais, “Les mesures provisoires dans le nouveau droit français de
l’arbitrage: à la recherche d’une complémentarité vertueuse entre arbitre et juge
étatique,” in J. van Compernolle, J.-F. van Drooghenbroeck et A. Saletti (dir.), L’arbitre
et le juge étatique, éd. Bruylant, 2014, p. 303 at 44. (Cécile, 2014).
7) Fowe v. Banque Internationale du Cameroun pour l’Epargne et le Crédit, N° 119/2019,
supra, Chapter 7, fn. 1.
8) Article 30 of the UAA states that “the arbitral award is enforceable only by virtue of an
exequatur decision issued by the competent court in the State Party.”
9) CCJA Regulation on Arbitration, Art. 10-1, para. 2.
10) CCJA Regulation on Arbitration, Art. 30.4 which states that “the decision of the
president granting exequatur cannot be appealed.”
11) UAA, Art. 13, para. 4.
12) CCJA Regulation on Arbitration, Art. 10-1, para. 3.
13) Id., para. 4.

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 8: Consolidation, Joinder and Intervention

During the reform of the arbitration Rules in 2017, some new features have been added to
Publication the different rules on multiparty issues (§8.01), multi contract issues (§8.02), as well as
joinder and intervention (§8.03) under both sets of rules.
Arbitration in Africa under
OHADA Rules §8.01 MULTIPARTY ISSUES
Article 8-3 of the CCJA Regulation on Arbitration states:
Organization 8-3.1 Arbitration administered by the Court may take place between more
Cour Commune de Justice than two parties if they have agreed to arbitration in accordance with
et d’Arbitrage de this Regulation. In the event of a multiparty arbitration, any party may
l’Organisation pour file claims against any other party.
l’Harmonisation en Afrique 8-3.2 Any party making a claim under Article 8-3.1, must produce the
du Droit des Affaires information required under Article 5 of this Regulation.
8-3.3 Once the matter has been referred to the arbitral tribunal, it determines
the procedure to be followed for any new claim.
Bibliographic reference
While it is true that Article 8-3 allows the arbitral tribunal to determine the procedure to
'Chapter 8: Consolidation, be followed for each new request, nothing prevents the parties from providing for the
Joinder and Intervention', terms for implementing the procedure. For example, when several parties are bound by
in Mahutodji Jimmy Vital the same contract, for example, several sellers and/or several purchasers of the shares of
Kodo , Arbitration in Africa a company, it is recommended that they provide in the arbitration clause how the
under OHADA Rules, procedure will be implemented and the arbitration tribunal will be set up. In particular,
(© Kluwer Law it is necessary to specify whether the request must come from all the parties or whether
International; Kluwer Law one of them will represent them, in which case the power of attorney will be given in the
International 2020) pp. 83 - contract, and how the arbitrator appointed by the plaintiff will be chosen, for example by
86 unanimous agreement between them or, failing that, by the judge. It must also be
stipulated whether all the parties dragged into the proceedings must be so personally or
through one of them empowered by the contract, and the mode of appointment of the
arbitrator by the respondent(s) must be modeled on the one for the claimant(s). To
facilitate procedural acts, it is also advisable to provide for all the parties to the contract
an election of domicile, in order to avoid the impossibility, if any, of contacting one of
them at the address indicated in the contract.

§8.02 MULTI CONTRACT ISSUES

Article 8-4 deals with multiple contract issues. It states:
8.4.1 Claims arising out of or in connection with several contracts may be
made in a single arbitration.
8.4.2 Where these claims are made under several arbitration agreements, the
arbitral tribunal must ascertain that:
a) the parties have agreed to arbitration under this Regulation and
that these arbitration agreements are compatible with one
another, and
b) all parties to the arbitration have agreed to have their claims
settled within a single procedure.

§8.03 JOINDER AND INTERVENTION

Forced joinder (§8.03[A]) and intervention (§8.03[B]) will be presented separately.

[A] Forced Joinder

On forced joinder, Article 8-1 states:
8-1.1 A party wishing to join an additional party bound by the arbitration
agreement but foreign to the arbitration proceedings, submits a request
for arbitration against the additional party to the Secretary General.
Before the arbitral tribunal is constituted, the Court may set a deadline
for submission of requests for joinder.
If, at the time of the request for joinder, the Tribunal has already been
constituted or one of its members has already been appointed or, if
applicable, confirmed, the joinder is declared inadmissible unless the
parties and the intervening party agree otherwise and the arbitral
tribunal accepts it, taking into account the state of progress of the
arbitration proceedings.

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 The date of receipt of the request for joinder by the Secretary General is
considered, for all purposes, at that of the introduction of the arbitration
proceedings against the additional party.
8-1.2 The request for joinder must contain the following elements:
a) the file reference of the existing proceedings,
b) the full name and corporate name, capacity, postal address and
email address of each of the parties, including the intervening
party, and
c) the information required under Article 5, paragraphs 2.b, c and d of
this Regulation.
8-1.3 The request for joinder is sent by the Secretary General only if it is
accompanied by the number of copies required under Article 12.1 of this
Regulation and the payment of the filing fee required for initiation of the
proceedings under the Schedule of fees of Annex II.

8-1.4 The additional party submits a response in accordance with, and subject
to the necessary changes, the provisions of Article 6 of this Regulation or,
if the arbitral tribunal has already been constituted, according to the
instructions of the latter. The intervening party may file claims against
any other party in accordance with the provisions of Article 7 above.
By creating this new provision, the OHADA Legislator expressly allows forced joinder, the
practical and procedural details of which are indicated in particular by:
– setting a time limit for submitting the request for forced joinder before the tribunal
is constituted or, if the tribunal is constituted (or one of its member is already
confirmed) before the application, inadmissibility of the request for joinder unless
the parties and the joining party agreed otherwise and that the tribunal admit it,
taking into account the state of progress (Article 8-1.1);
– content of the request for forced joinder which must include the reference to the
existing procedure and reference to Articles 5, 6 and 12 of the CCJA Regulation on
Arbitration for the other procedural details (Articles 8-1.2 to 8-1.4).
As to the substance, Article 8-1 essentially calls for the determination of persons likely to
be the subject of forced joinder in arbitration. As the legislator did not detail the criteria
for identifying these persons, which it will doubtless be for the courts to specify over
time, it seems useful to refer to comparative case law likely to inspire practitioners in the
solutions to be suggested to jurisdictions that will decide disputes which will inevitably
arise through forced joinder. Three main categories emerge from the comparative case
law but will not be presented in detail here. In the case of persons who may be subject to
forced joinder, there are those who are bound by an arbitration agreement and those
who, without being directly linked, may be subject to arbitration under certain
conditions. The disputes covered by the arbitration agreement (s) constitute a separate
category.

[B] Voluntary Intervention

Article 8-2 governs voluntary intervention. It states:
8-2—Voluntary intervention
No voluntary intervention is admissible before the constitution of the arbitral
tribunal.
After the constitution of the arbitral tribunal, any voluntary intervention in
arbitration proceedings is subject to the prior approval of the parties and the
arbitral tribunal.
There is not much to be said about voluntary intervention at this stage.

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 9: Confidentiality

After some general comments on the confidentiality of arbitration under both systems
Publication (§9.01), a brief comment will be made on the confidentiality of investor-state arbitration
(§9.02).
Arbitration in Africa under
OHADA Rules §9.01 GENERALITY
Article 18 of the UAA states that “the deliberations of the arbitral tribunal are
Organization confidential.” Apart from that Article, there is no other specific provision about the
confidentiality of the arbitration proceedings per se. However, confidentiality is implied
Cour Commune de Justice under the UAA and generally enforceable through the arbitration rules of the vast
et d’Arbitrage de majority of national or regional arbitration centers, (1) which all operate under the UAA.
l’Organisation pour
l’Harmonisation en Afrique Under the CCJA Regulation on Arbitration, there is a specific provision on the
du Droit des Affaires confidentiality of proceedings, at Article 14. It states:
Arbitration proceedings are confidential. The work of the Court relating to the
conduct of arbitration proceedings is subject to this confidentiality, as well as
Bibliographic reference all meetings of the Court held for the administration of the arbitration.
Confidentiality also covers documents submitted to the Court or drafted by it
'Chapter 9: Confidentiality', in the proceedings it administers.
in Mahutodji Jimmy Vital
Kodo , Arbitration in Africa Unless otherwise agreed by the parties, the latter and their counsel,
under OHADA Rules, arbitrators, experts and all persons associated with the arbitration
(© Kluwer Law proceedings are bound by the duty of confidentiality of the information and
International; Kluwer Law documents produced during the said proceedings. Confidentiality extends,
International 2020) pp. 87 - under the same conditions, to arbitral awards.
88

The Secretary General is authorized to publish extracts from arbitral awards

without mentioning elements enabling the identification of the parties.
Article 14 of the revised CCJA Regulation on Arbitration, currently in force, contains two
essential changes. The last sentence of the former paragraph 1 provided for the
confidentiality, inter alia, of the arbitral proceedings which the CCJA “expedites.” The
revised version refers to the procedures that the CCJA “administers.” This terminology
clarification is more in line with reality since the CCJA only administers the arbitration
procedures carried out by the parties. The second amendment to Article 14 is innovative
because the secretary-general is now allowed to publish extracts from awards after
taking care to make them anonymous. It must also be noted that Article 12.1, paragraph 2
of the CCJA Regulation on Arbitration mandates that after referral of the case to the
arbitral tribunal, the tribunal and the parties must send an electronic copy of all
correspondence exchanged in connection with the proceedings to the secretary-general.
In light of that, the secretary-general must be viewed as part and parcel of the
arbitration proceedings, and a practical way of complying with that requirement is to
copy the secretary-general in all communications between the parties and the tribunal.
The only exception to this rule is that any deliberation of the arbitral tribunal is internal
to the tribunal and must remain between its members only. The secretary-general, no
more than the parties or anybody else, is entitled to have access to such deliberation at
that stage. If parties and the tribunal agree, persons not involved in the arbitration
proceedings may be allowed to attend the hearings. (2)

§9.02 CONFIDENTIALITY OF INVESTOR-STATE ARBITRATION

There is no specific provision relating to confidentiality for investor-state arbitration
under OHADA Rules, since from the beginning, there has never been a special or different
treatment for investor-state arbitration. Thus, confidentiality applies to any arbitration
proceedings governed by OHADA Rules. The peculiarity of investor-state arbitration in
terms of arbitration, if there is any, will be found in the specific investment instrument(s)
at hand in each case.
Following the example of South Africa, (3) it would be appropriate to be able to hold
public hearings in arbitration cases involving States or governmental entities and
investment disputes, for transparency purposes. Even though it does not expressly exist
in the current state of the applicable rules, it would be an appropriate measure to
consider by the OHADA Legislator for the future.

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 References
1) For a list of some of these, see International Trade Center (ITC), “La Médiation et
l’Arbitrage dans l’Espace UEMOA. Recueil des Lois et Pratiques,”
http://www.intracen.org/uploadedFiles/intracenorg/Content/Publications/Receuil_ar
bitrage_final_Low-r... [accessed May 8, 2020, at 21:11] (International Trade Center,
2018).
2) CCJA Regulation on Arbitration, Art. 19.5, para. 2.
3) See the South African Protection of Investment Act N° 22 of 2015, § 6-4 and 13-5
(available at: https://www.thedti.gov.za/gazzettes/39514.pdf) [accessed Apr. 11, 2017,
at 17:01].

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 10: Legal Representation and Professional

Conduct
Publication The first two sections of this chapter will be dedicated to the right of the parties to legal
Arbitration in Africa under representation (§10.01) and how it is exercised (§10.02), followed by some comments on
OHADA Rules professional conduct of legal representation (§10.03) under both arbitration systems.

§10.01 THE PARTIES’ RIGHT TO REPRESENTATION

Organization The right to representation in arbitration under OHADA Rules is implied, even though it is
Cour Commune de Justice not expressly stated in those rules. There is no obligation for a party to an arbitration to
et d’Arbitrage de have counsel, like it is for litigation before the CCJA. (1) Several provisions of the CCJA
l’Organisation pour Regulation on Arbitration acknowledge the right to representation throughout various
l’Harmonisation en Afrique stages of the proceedings.
du Droit des Affaires Thus, upon receipt of an arbitration request, “the Secretary General may require proof of
the power of attorney of any representative of a party acting on behalf of the claimant(s).”
(2) The “representative” here may refer to counsel or any other person representing a
Bibliographic reference party.
'Chapter 10: Legal At the stage of the appointment of arbitrators, the CCJA may consider, among other
Representation and things, the place of residence “of their counsel.” (3)
Professional Conduct', in After it has been duly formed and has received the file of the case, the arbitral tribunal
Mahutodji Jimmy Vital Kodo may “may require proof of the power of attorney of any representative of a party if it
, Arbitration in Africa under deems it necessary” (4) during the case management conference.
OHADA Rules, (© Kluwer
Law International; Kluwer
Law International 2020) pp. During the proceedings and at the stage of hearings, parties may be assisted by their
89 - 92 counsel; they may also abstain from attending hearings and be represented instead by
duly authorized persons. (5) The arbitral tribunal may decide to hear the parties
separately if deemed necessary, in which case the hearing of each party must take place
in the presence of both parties’ counsel. (6)
Finally, the arbitral award must contain “e) if applicable, the first and last names of
counsel or any person who has represented or assisted the parties.” (7)
The ruling of the CCJA in Kiendrebeogo v. Banque Internationale du Burkina (8) illustrates
the fact that representation by counsel is implied, as the CCJA has ruled that the
notification of an arbitral award to counsel of a party is valid for the purpose of
determining whether the statute of limitation has run for filing an appeal for annulment
against the award.

§10.02 THE PARTIES’ EXERCISE OF THEIR RIGHT TO REPRESENTATION

It must be noted, from the wording of Articles 5, paragraph 9, Article 15.1, paragraph 1,
Article 19.1, paragraph 4 and Article 22.1, paragraph e) mentioned in the preceding
section of this Chapter (§10.01) that a person representing a party to arbitration
proceedings does not have to be an attorney or a licensed lawyer. In Société Générale
d’Electricité Ferroviaire du Congo v. Airtel Congo, a licensed attorney represented a
corporation in arbitration under the CCJA Rules. Before the award was rendered, that
attorney was sentenced for imprisonment for a criminal offense. After the award has been
rendered, the opposing party challenged the award on the ground of breach to
international public policy, in that the arbitral tribunal has received the writings of a
Lawyer sentenced to imprisonment and who, as a result, was unable to act on behalf of
the corporation in the arbitration proceedings. The CCJA rejected the challenge, holding
that “it follows from Article 19.1 paragraph 3 of the CCJA Regulation on Arbitration that
representation by a lawyer is not mandatory in arbitration proceedings. Consequently, the
presence of a lawyer whose conviction is alleged in no way renders the arbitral award
contrary to international public policy and the appeal against the validity of the award
for such award must be dismissed.” (9)

§10.03 PROFESSIONAL CONDUCT OF LEGAL REPRESENTATIVES

Since there is no elaborated and detailed set of rules on representation in the OHADA
Rules, professional conduct of legal representatives is governed by the rules applicable
to the bar association or professional bodies to which each party’s representative
belongs. Thus, any lawyer acting on behalf of a party to arbitration proceedings must
abide by the professional and ethical rules of the professional body they are a member
of, in addition to the procedural rules applicable to the arbitration proceedings at hand.

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 References
1) CCJA Regulation on Procedure, Art. 23.1.
2) CCJA Regulation on Arbitration, Art. 5, para. 9. [Emphasis added].
3) Id., Art. 3.3, para. 1.
4) Id., Art. 15.1, para. 1. [Emphasis added].
5) Id., Art. 19.1, para. 4.
6) Id., Art. 19.1, para. 5.
7) Id., Art. 22.1, para. e). [Emphasis added].
8) Kiendrebeogo v. Banque Internationale du Burkina, N° 031/2009, Decision, [C.C.J.A.],
Ass. plén., (Apr. 30, 2009), http://www.ohada.com/jurisprudence/ohadata/J-10-
54.html. The CCJA ruled that when the challenged arbitral award was rendered on Jan.
15, 2007 and notified on Jan. 31, 2007 to the Appellant’s counsel, the latter had, under
Art. 29.3 of the CCJA Regulation on Arbitration, and taking into account the fourteen-
day distance period prescribed by Decision 002/99/CCJA, until Apr. 16, 2007, the first
working day after Sunday April 15, to exercise its appeal in cassation. The appeal in
cassation, which was not received and registered at the CCJA Registry until May 7, 2007,
is inadmissible.
9) Société Générale d’Electricité Ferroviaire du Congo v. Airtel Congo, N° 099/2009,
Decision, [C.C.J.A.], Ass. plén., (Oct. 30, 2014),
http://www.ohada.com/jurisprudence/ohadata/J-15-190.html. [Emphasis added].

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Part III: The Arbitral Award

The existence of a valid arbitration agreement, in conjunction with the birth of a dispute
Publication to which the appropriate procedure is applied logically, leads to an arbitral award. The
three chapters of this part will present the legal framework (Chapter 11), the form and
Arbitration in Africa under content (Chapter 12), and finally, correction, interpretation, and supplementation
OHADA Rules (Chapter 13) of arbitral awards under both sets of rules.

Organization
Cour Commune de Justice
et d’Arbitrage de
l’Organisation pour © 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
l’Harmonisation en Afrique
du Droit des Affaires Kluwer Arbitration is made available for personal use only. All content is protected by copyright and
other intellectual property laws. No part of this service or the information contained herein may be
reproduced or transmitted in any form or by any means, or used for advertising or promotional
Bibliographic reference purposes, general distribution, creating new collective works, or for resale, without prior written
permission of the publisher.
'Part III: The Arbitral
Award', in Mahutodji Jimmy If you would like to know more about this service, visit www.kluwerarbitration.com or contact our
Vital Kodo , Arbitration in Sales staff at lrs-sales@wolterskluwer.com or call +31 (0)172 64 1562.
Africa under OHADA Rules,
(© Kluwer Law
International; Kluwer Law
International 2020) pp. 93 -
94

KluwerArbitration

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 11: Legal Framework for the Award

The applicable laws (§11.01), as well as the power of an arbitral tribunal to decide a case
Publication ex aequo et bono (§11.02), and by referring to international trade practices (§11.03), will
be presented in this chapter.
Arbitration in Africa under
OHADA Rules §11.01 APPLICABLE LAWS
[A] Under the UAA
Organization
The UAA states at Article 14, paragraphs 1 and 2 about the applicable law to the merits:
Cour Commune de Justice
et d’Arbitrage de The parties may, directly or by reference to arbitration rules, determine the
l’Organisation pour arbitral procedure. They may also subject it to a procedural law of their
l’Harmonisation en Afrique choice.
du Droit des Affaires In the absence of such an agreement, the arbitral tribunal may proceed with
the arbitration as it deems appropriate.
Bibliographic reference The autonomy of the parties in choosing the applicable law to the merit is strengthened
by Article 15 of the UAA, which states that:
'Chapter 11: Legal
Framework for the Award', The arbitral tribunal rules on the merits of the dispute under the rules of law
in Mahutodji Jimmy Vital chosen by the parties. In the absence of choice by the parties, the arbitral
Kodo , Arbitration in Africa tribunal applies the rules it deems the most appropriate, by taking into
under OHADA Rules, consideration, as the case may be, international trade usages.
(© Kluwer Law
International; Kluwer Law It may also rule as amiable compositeur when the parties have conferred such
International 2020) pp. 95 - power on it.
98
[B] Under the CCJA Rules
On the law applicable to the merits, Article 17 of the CCJA Regulation on Arbitration
states:
The parties are free to determine the rules of law that the tribunal will have to
apply to the merits of the dispute. In the absence of the choice of the parties,
the arbitral tribunal applies the rules of law which it considers most
appropriate in the case.
In all cases, the arbitral tribunal takes into account the stipulations of the
contract and international trade usages.
The arbitral tribunal may also rule as amiable compositeur upon express
agreement of the parties.
The revised Article 17 of the CCJA Regulation on Arbitration contains three essential
amendments: (i) replacement of the expression “law” with “the rules of law”; (ii) deletion
of the reference to the “conflict rule” for the designation, by the arbitral tribunal, of the
applicable law where the parties have not indicated it. It is now indicated that the
arbitral tribunal will apply the rules it deems most appropriate. It is conceivable,
however, that without indicating it, the tribunal uses the rule of conflict to determine the
applicable law; finally, (iii) introduction of the reference to the “uses of international
trade.” The reference to “use of trade” already existed in the Regulations, but the
Legislator took care to specify the “uses of international trade,” as was already the case
in the UAA (Article 15) where the reference existed but was not mandatory upon arbitral
tribunals.
Under both the UAA and the CCJA Rules, the law applicable to the merits is primarily the
prerogative of the parties, arbitral tribunals being allowed to determine such rules only
where parties have not stipulated them. The parties can also give tribunals the power to
decide the case ex aequo et bono, and international trade usage are part of the
applicable law to the merits, under certain conditions. For practical reasons and because
of their similarity of regime, amiable composition and international trade usage will be
commented on together hereafter.

§11.02 POWER OF AN ARBITRAL TRIBUNAL TO DECIDE A CASE EX AEQUO ET

BONO
In Nestle Sahel v. Société Commerciale d’Importation Azar et Salame, amicable
composition is defined negatively, like the power of arbitrators, not to stick to the strict
application of the rules of law, which makes it possible to ignore them as well as to
deviate from them, as long as their sense of fairness demands it. (1) In order to comply
with their mission, the arbitrator resolving a dispute ex aequo et bono is under the

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 obligation to confront legal solutions with equity, fairness. (2) However, an arbitral
tribunal to which parties have conferred the power to rule ex aequo et bono are not
bound to rule only as amiable compositeur, according to the CCJA which held, in Delpech v.
Sotaci, that “arbitrators, who relied on legal solutions to settle a dispute and who were
under no obligation, contrary to the contention of one party, to rule only as amiable
compositeur, remained within the scope of the mission entrusted to them and the request
to annul their award must be dismissed.” (3)
On the other hand, the arbitral tribunal which based its ruling on a fact disputed by one
of the parties, without providing evidence based on the Ivorian law governing the
proceedings at hand, has used the powers of amiable compositeur that the parties have
not given it and its award must be annulled. (4)

§11.03 INTERNATIONAL TRADE PRACTICES

Under the UAA, international trade usages are not mandatory; an arbitral tribunal is
under no obligation to refer to them in resolving the dispute submitted to them since
under Article 15, the tribunal can refer to them only if “it deems [that] most appropriate
… as the case may be.” (5)
The situation is different under the CCJA Regulation on Arbitration; in Société Ivoirienne de
Raffinage v. Bona Shipholding Ltd, the CCJA held that “uses of international trade” are
understood within the meaning of revised Article 17 of the CCJA Regulation on Arbitration
as general principles of law since that Article states that “in all cases, the arbitral
tribunal takes into account the stipulations of the contract and the uses of international
trade.” Those usages are thus elevated to the rank of a mandatory rule (of public policy),
at least by the Regulation on Arbitration, which has been affirmed by the CCJA through a
ruling that an arbitral tribunal is under the obligation to rule in referring to those
international trade usages. (6) As the CCJA pointed out in its judgment mentioned above,
only commercial uses, “the existence of which is not disputed,” are to be taken into
account. Because of their compulsory nature in arbitration, the uses of trade, now
taken in the international context, deserve to be defined, the OHADA Legislator not
having done so. In the absence of a comprehensive inventory of the international trade
usages, comparative case law would be very helpful, as well as legal scholarship
suggesting a possible list of such usages (7) as well as discussing the risks of a “conflict of
list” and ways to avoid them. (8)

References
1) Nestle Sahel v. Société Commerciale d’Importation Azar et Salame, N° 028/2007,
Decision, [C.C.J.A.], Ass. plen., (Jul. 19, 2007),
http://www.ohada.com/jurisprudence/ohadata/J-08-250.html.
2) CA Abidjan, Apr. 27, 2001, N° 45 (Ivory Coast),
http://www.ohada.com/jurisprudence/ohadata/J-02-171.html.
3) Delpech v. Sotaci, N° 010/2003, Decision, [C.C.J.A.], (Jun. 19, 2003),
http://www.ohada.com/jurisprudence/ohadata/J-04-65.html. [Emphasis added].
4) Nestle Sahel v. Société Commerciale d’Importation Azar et Salame, N° 028/2007,
supra, Chapter 11, fn. 1. In the present case, it appears from the challenged arbitral
award, with regard to the damage caused by corporation A to corporation B, that the
latter, in its written pleadings and oral argument, contemplates said damage with
regard to 23 years of collaboration with Corporation N. However, the arbitral tribunal,
“while considering such a vision legitimate,” did not follow Corporation B, on the
grounds that its jurisdiction was determined by the arbitration clause; he claims to
have only taken into account the relations of almost two calendar years which,
according to him, occurred between Corporation B and its contracting partner,
Corporation A. Consequently, by ordering Corporation A to pay to Corporation B, all
causes of loss combined, the sum of five billion CFA francs, on the grounds that “the
important role played by Corporation [A], at the end of the chain of group N
companies, in the brutal sidelining of the Corporation B, is taken into consideration
for the assessment of the damage suffered by Corporation B,” the arbitral tribunal
based the said judgment on the period of twenty-three years, however disputed,
resulting from the previous collaboration between Corporation B and the group N.,
within which Corporation A is an autonomous entity.
5) UAA, Art. 15, para. 1.
6) Société Ivoirienne de Raffinage v. Bona Shipholding Ltd, N° 029/2007, supra, Chapter
3, fn. 41. In particular, the court held that, under section 17 of the CCJA Regulation on
Arbitration, the arbitrator must consider international trade usages in all cases, even
where the parties have expressly designated the law to apply to the merits of the
dispute. In the case at hand, with reference to trade usages, the existence of which is
not disputed by the appellant, the Arbitral Tribunal ruled in law as it was required to.

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 7) See, for example, the list of the twenty-five items the lex mercatoria as drawn up by
Michael J. Mustill, The New Lex Mercatoria: The First Twenty-five Years, 4 Arbitration
International 86 (1988) (Mustill, 1988).
8) Emmanuel Gaillard, Transnational Law: A Legal System or a Method of Decision
Making?, 17(1) Arb. Intl. 64, https://www.arbitration-
icca.org/media/4/16644703895537/media012178525391230transnational_law_eg.pdf
[accessed Apr. 2, 2020, at 14:41] (Emmanuel, 2001).

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 12: Form and Content of Arbitral Awards

This chapter is structured into eight sections. Starting with the form and content of
Publication arbitral awards (§12.01), it presents the formal requirements of arbitral awards (§12.02) as
well as the requirement that awards be reasoned (§12.03), majority awards and awards by
Arbitration in Africa under presiding arbitrators (§12.04), separate, concurrent and dissenting opinions (§12.05), time
OHADA Rules limit, service and publication of arbitral awards (§12.06) and the awards of costs of
arbitration and legal representation (§12.07) as well as interests (§12.08).

Organization §12.01 CATEGORIES OF ARBITRAL AWARDS

Cour Commune de Justice Apart from the final award, which generally resolves the dispute submitted to it, an
et d’Arbitrage de arbitral tribunal may have to render at least five different types of awards, depending on
l’Organisation pour the circumstances and the behavior of the parties. Those are awards by consent
l’Harmonisation en Afrique (§12.01[A]), partial awards (§12.01[B]), interpretive awards (§12.01[C]), corrective awards
du Droit des Affaires (§12.01[D) and additional awards (§12.01[E]).

[A] Awards by Consent

Bibliographic reference At any stage of the proceedings, the tribunal may render an award by consent where the
'Chapter 12: Form and parties reach an agreement and request it to be formalized. (1) Under the UAA, it is
Content of Arbitral Awards', specified that “such award has the same status and effect as any other award ending the
in Mahutodji Jimmy Vital dispute.” (2) Even though there is no such precision in the CCJA Regulation on this, it must
Kodo , Arbitration in Africa be assumed that the same rule is implied and also applies to arbitration proceedings
under OHADA Rules, governed by the CCJA Rules.
(© Kluwer Law
International; Kluwer Law
International 2020) pp. 99 - [B] Partial Awards
116
Where applicable, arbitral tribunals may render “partial awards resolving some of the
claims of the parties.” (3) Partial awards can also be rendered under the UAA, for
example, to settle an objection to the jurisdiction of the tribunal. (4) Under the UAA, as
well as the CCJA Rules, an arbitral tribunal can also use a partial award to order
provisional or interim measures like those within their purview, as previously mentioned.
(5)

[C] Interpretive Awards

An arbitral tribunal has the power to interpret an arbitral award by an interpretive
award, namely, “explain” or clarify an award it has previously rendered. (6)

[D] Corrective Awards

Under both the UAA and the CCJA Rules, an arbitral award containing some errors may be
corrected through a corrective award. (7)

[E] Additional Awards

Finally, an additional award may be used by a tribunal to supplement an award where
the tribunal has omitted to rule on a claim. (8)

§12.02 FORMAL REQUIREMENTS FOR AWARDS

The formality of an arbitral award requires a specific content which must be complied
with (§12.02[A]). In addition to that, awards rendered under the CCJA Rules are subject to
scrutiny by the CCJA (§12.02[B]).

[A] Content of an Arbitral Award

Article 20 of the UAA, which has been reproduced identically at Article 22.1 of the CCJA
Regulation Arbitration, states that:
In addition to the operative part, the arbitral award must contain:
a) the last and first names of the arbitrator(s) who rendered the award;
b) its date;
c) the seat of the arbitral tribunal;
d) the last, first and corporate names of the parties, as well as their
domicile or registered office;
e) if applicable, the last and first names of counsel or any person who has
represented or assisted the parties;
f) the statement of the respective claims and arguments of the parties, as

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 well as the procedural history.
The arbitral award must be reasoned.
If the arbitral tribunal has been empowered by the parties to rule as amiable
compositeur, it must be mentioned.
This is the first time that the OHADA Legislator clearly requires an arbitral tribunal under
Article 20 of the UAA, to mention in its award the power given to the arbitral tribunal to
rule as amiable compositeur, where applicable. It is also the first time that the OHADA
Legislator clearly indicated the content of an arbitration award in the CCJA Regulation on
Arbitration. The content was expressly provided for in the UAA (before its reform) and
implicitly for the Regulation, no ruling of the CCJA, having suggested a difficulty that
would have arisen as a result of the absence of one of the mentions required. The wording
of the revised paragraph 1 of Article 22, according to which “In addition to the operative
part, the award must contain the indication …” suggests that the operative part of the
award must now stand out clearly and be identifiable as such. For an award to be
complete, it will be necessary to add, in addition to the information required under
Article 22.1 of the CCJA Regulation on Arbitration, the tribunal’s ruling on the costs of the
arbitration in accordance with Article 24 of the Regulation, which must contain the fees of
the tribunal and the administrative costs as set by the CCJA.
In addition to the formal requirements presented above, an award must be signed to be
enforceable. (9)

[B] Scrutiny of an Arbitral Award

Unlike the CCJA Regulation on Arbitration, there is no provision of the UAA requiring
scrutiny of an arbitral award prior to its notification to the parties. However, such scrutiny
might be required under the arbitration rules of local or national arbitration centers
operating under the UAA. That is the case for the majority of the States Parties to the
Treaty, namely in West Africa with Benin, (10) Burkina Faso, (11) Ivory Coast, (12) Mali,
(13) Niger, (14) Senegal, (15) Togo, (16) ; and in Central Africa, with Cameroon (17) and
Congo. (18) For more insight, readers are encouraged to refer to specific arbitration rules
that may apply to their proceedings in addition to the UAA, where applicable.
Scrutiny of arbitral awards under the CCJA Regulation on Arbitration requires more
attention, for the following obvious reasons. Article 23 of the Regulation states:
23.1 The arbitral tribunal sends the drafts of the awards on jurisdiction, partial
awards resolving some of the claims of the parties and its final awards to the
Secretary General for a preliminary examination by the Court before those
awards are signed.
The other awards are not subject to the preliminary examination but are only
sent to the Court for information.
23.2 The Court may suggest purely editorial changes, draw the attention of the
arbitral tribunal to claims which do not appear to have been processed or
mandatory information which do not appear in the draft award, in the event of
lack of reason, or if there is an apparent contradiction in the reasoning, without
however having the power to suggest a reasoning or a substantive solution on
the merits concerning the dispute.
The Court examines the draft award submitted to it within a maximum period
of one (1) month from its receipt. (19)
The revised Article 23 contains three main amendments: (i) clarification of a practical
modality relating to the review of draft awards by the Court, in particular, that the draft
award is transmitted to the CCJA by the secretary-general; (ii) framing of the preliminary
examination by the CCJA within one month, for swiftness; (iii) strengthening of the
preliminary examination of the award by the CCJA. This last point deserves special
attention.
Article 23 of the CCJA Regulation on Arbitration Rules listed, before the reform, a number
of awards which had to be submitted to the CCJA for prior examination before notification
to the parties. The Court could then “only propose purely formal changes.” However, the
revised Article 23.2, paragraph 1 now provides that:
23.2 The Court may suggest purely editorial changes, draw the attention of the
arbitral tribunal to claims which do not appear to have been processed or
mandatory information which do not appear in the draft award, in the event of
lack of reason, or if there is an apparent contradiction in the reasoning, without
however having the power to suggest a reasoning or a substantive solution on
the merits concerning the dispute. (20)
The Court is now allowed to go beyond formal suggestions, as it can “draw the attention of
the arbitral tribunal to”:
– “claims which do not appear to have been processed”;

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 – “mandatory information which do not appear in the draft award”;
– “in the event of lack of reason”;
– “or if there is an apparent contradiction in the reasoning.”
Each of the four irregularities above on which the Court is permitted to “draw the
attention of the arbitral tribunal” may constitute a ground for the annulment of the award
under the following conditions.
[1] Claims That Do Not Appear to Have Been Processed
A claim that does not appear to have been processed is, in fact, the refusal or failure to
respond to a request, which constitutes a breach of its mission by an arbitrator (21) under
Article 29.2 (c) of the CCJA Regulation on Arbitration and likely to justify the annulment of
an award. It should be noted, however, that the revised Article 26, paragraph 3 allows for
an additional referral to an arbitral tribunal to rule on a claim it has omitted. As a result,
the possibility of obtaining the annulment of an arbitration award for failure to respond
to a claim appears to be significantly reduced.
[2] Absence of Mandatory Information in the Draft Award
The absence of mandatory information in an award is not expressly established as a
ground for the annulment of an award, but it seems neither impossible nor excessive to
consider that the omission of certain essential mentions in an award (such as the date,
the names and signature of the arbitrators) can be equated with a failure to perform their
mission, with the consequences to be drawn from it, namely, annulment under Article
29.2, paragraph c) of the CCJA Regulation on Arbitration.

[3] Failure to State Reasons for the Award and Apparent Contradictions in the Reasoning
As it will be demonstrated infra, (22) the existence of an objectionable or erroneous
reason for the award must be distinguished from the absence of a reason for the award,
to which the existence of conflicting grounds or contradictory reasons (23) can be
equated. However, the presence of contradictions in the reasoning constitutes no more or
less the existence of contradictory reasons, the consequences of which must be drawn.
Thus, at least the failure to state reasons constitutes a certain cause for the annulment of
an award for the failure of the tribunal to perform its mission. It is indisputable that the
purpose of this increasingly thorough review or scrutiny the CCJA is now allowed to
perform is indirectly intended to reduce or limit the risks of the annulment of arbitral
awards, which is commendable.
However, if the CCJA is not careful, the use of this faculty could transform it during
arbitration proceedings into a “teleprompter” or “solution whisperer” indicating to
tribunals grounds of potential annulment, which could amount to an inappropriate and
unjustified limitation of the defense rights of the party with interest in seeking the
annulment of the tainted award on the ground that the CCJA would have “whispered” to
the arbitral tribunal.
Because of the “elitist” nature of arbitration, which manifests itself through a very high
selectivity, on the one hand, of the persons likely to be appointed as arbitrators and, on
the other hand, of those who are actually appointed by the parties and arbitral
institutions, arbitrators are the subject of very high esteem which, in return, should
require a very high level of competence, knowledge and professionalism. Thus, it can
hardly be admitted, even conceivable, that a person who wants to be an arbitrator
abstains, (by omission?) from ruling on a request submitted to them, omits mandatory
information, does not know how to state the reasons of their award or write a clear,
intelligible one without contradiction. This is, therefore, the case since arbitrators, rare
elected officials who are sometimes credited with a myth of exceptional experience and
competence setting them apart, should not need to be taken by the hand and guided in
the exercise of this exceptional office reserved for an “elite” and for which, it must be
remembered, the parties will have sometimes paid significant amounts in terms of fees.
Just as, while handling a case, a lower court of law does not receive such assistance from
a Court of Appeal which, in turn, receives none from the cassation court (the CCJA), an
arbitral tribunal should not receive such assistance. It would not come to mind imagining
a commercial court submitting the draft of its judgment to an appellate court, hoping
that the Court would indicate to it the elements of the draft judgment likely to entail to
the reversal of the subsequent decision by the Court of Appeal. Likewise, an appellate
court would not submit to the Court of Cassation (the CCJA again) its draft judgment and
wait for the highest court to pinpoint the potential means of overturning the judgment if
it were the subject of an appeal. The fact that arbitration and ordinary court
proceedings are different has no bearing here as long as the result is the same.
In fact, the scrutiny now provided for by Article 23 of the CCJA Regulation on Arbitration
seems to go beyond the scope of the administration of arbitration proceedings under
Article 1 of the Regulation; it would even amount to violation of Article 24, paragraph 2 of
the Treaty, according to which the CCJA “can only suggest editorial changes” (emphasis
added) during the scrutiny of an arbitral award. The changes that the CCJA is now allowed

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 to implement may entail the merits, something that is more than the “editorial changes
permitted by the Treaty” and in these circumstances, the CCJA could hardly escape the
criticism of interference, even involuntary, in the arbitration procedure, which certain
business circles were already accusing it of doing, although the reproaches were largely
unfounded. In other words, it is very likely that by wanting to do better, the OHADA
Legislator actually exposed the CCJA to more criticism of its impartiality by pushing it
more toward the edge of possible undue interference in the arbitration process, and
litigants at the risk of being deprived of necessary remedies against an award, which may
be an indirect violation of the right of defense. It is, therefore, highly desirable that the
CCJA significantly limits the use of this option left to its discretion if it does not refrain
from using it, which, however, seems preferable because of the reasons presented above.

§12.03 REQUIREMENT THAT THE AWARD BE REASONED

As highlighted in the preceding section, under both the UAA (24) and the CCJA Regulation
on Arbitration, (25) an arbitral award must be reasoned, that is, state the reasons upon
which the award is based. Also, the requirement that an award be reasoned has been
emptied of its substance since, as indicated in Chapter 14 infra (§14.07[B]), Article 23.2,
paragraph 2 of the CCJA Regulation on Arbitration provides for the possibility of the CCJA
to draw the attention of a tribunal on a failure of their draft award to state the reasons
upon which it is made, at the end of the preliminary examination of the draft award.

§12.04 MAJORITY AWARD AND AWARD BY THE PRESIDING ARBITRATOR

[A] Under the UAA
The first two paragraphs of Article 19 of the UAA state:
The arbitral award is rendered in accordance with the procedure and the
forms agreed by the parties.
Absent any such agreement, the award is rendered by a majority vote when the
tribunal is composed of three arbitrators.

There is a clear requirement of a majority of the votes for panels of three arbitrators
unless parties have stipulated something different.

[B] Under the CCJA Rules

The role of the chairman of an arbitral panel is relevant only under the CCJA Rules. Article
22.3 of the CCJA Regulation on Arbitration states that:
22.3 The arbitral award is rendered under the procedure and in the form
agreed by the parties. In the absence of such an agreement, the award is
rendered by a majority of votes when the tribunal is composed of three
arbitrators.
The arbitral award must be signed by the arbitrator(s).
However, if one or two (26) arbitrators refuse to sign the award, it must be
mentioned, and the award has the same effect as if it had been signed by all
the arbitrators.
Although it complies with the spirit of the older Article 22 paragraph 4 of the CCJA
Regulation on Arbitration and is similar to Article 32 of the International Chamber of
Commerce (ICC) Arbitration Rules currently in force, the wording of the last paragraph of
Article 23.3, namely that “However, if one or two arbitrators refuse to sign the award, it
must be mentioned and the award has the same effect as if it had been signed by all the
arbitrators” seems regrettable, for the following reasons.
First, for a panel of three arbitrators, the “majority of votes” under Article 22.3, paragraph
3 is, inevitably, at least two arbitrators.
Second, it results from Article 22.2 that and the arbitral award is deemed to have been
rendered only after it has been signed by the arbitrator(s).
Third, it does not seem conceivable that two arbitrators would refuse to sign an award
which will have been made by a majority of votes because an arbitrator cannot in
principle refuse to sign the award embodying a solution that arbitrator would have
chosen, namely, a solution agreed upon and voted for.
Fourth, to direct, as does Article 22.3, paragraph 3 above, that “if one or two arbitrators
refuse to sign the award, it must be mentioned and the award has the same effect as if it
had been signed by all the arbitrators,” amounts to considering that the only arbitrator
who will have signed (presumably the President of the Court, as is the case for the ICC and
in the former CCJA Regulation on Arbitration), alone constitutes a majority over the two
other arbitrators. In other words, if the two Co-arbitrators supported a different opinion
from that of the President of the tribunal, the latter could, on his own, impose his vision

4
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 of the solution on the whole tribunal although he was in the minority (one out of a panel
of three), and this, simply because of his position as President.
Under such conditions, paragraph 3 of Article 22.3 empties the first paragraph of the
same article, which states that an “award is rendered by a majority of votes when the
tribunal is composed of three arbitrators,” of its substance. This is because of two things,
one: either there is a panel of three arbitrators ruling by the majority of two arbitrators
out of three, regardless of whether the presiding arbitrator is part of that majority or the
award is purely and simply made by a single judge, and no problem majority would arise.
But allowing a minority arbitrator to impose his vision on the other members of the
panel, maybe because he is the presiding arbitrator, does not seem to be in accordance
with the wishes of the parties who would have wanted a panel of three arbitrators to
whom they would have paid substantial fees. It doesn’t seem fair to get the parties to pay
fees for a panel of three arbitrators if, at the end of the process, the award ends up being
rendered by an all-powerful President who could possibly have held the minority view.
The grammatical structure of Article 22.3 does not seem to suggest the possibility, for the
parties, to require by an agreement, a tribunal ruling by a majority of two arbitrators in
the absence of unanimity (27) since paragraph 3 has been separated from paragraph 1
which provides for it. Therefore, it seems very regrettable that the OHADA Legislator did
not clearly subordinate the validity of an award rendered by a panel to the signature by
at least two arbitrators forming the majority of the panel, notwithstanding the position of
the President of the tribunal. Indeed, one could have imagined a system requiring the
President of the arbitral tribunal, even if in a minority, to sign the award resulting from
the majority of the two other arbitrators, allowing the President to join their dissenting
opinion to the award as Article 23.4 permits it. (28) It is possible that this is due to an
error, (29) but in any event, and if it is an error, the fact remains that it is the version
currently in force, which seems problematic.

§12.05 SEPARATE, CONCURRING AND DISSENTING OPINIONS

Separate, concurring and dissenting opinions have been given little room under the
OHADA Arbitration Rules. There is no such reference in the UAA, and parties will have to
refer to applicable institutional rules where applicable.
In the CCJA Regulation on Arbitration, a brief reference is made to dissenting opinion at
Article 22.4, which states that “Any member of the arbitral tribunal may give their
personal opinion to the president, to be attached to the award.”

§12.06 TIME LIMIT, SERVICE AND PUBLICATION OF ARBITRAL AWARDS

Time limits (§12.06[A]), service (§12.06[B]) and publication (§12.06[C]) of arbitral awards
under both sets of rules will be presented under this section.

[A] Time Limit

[1] Under the UAA
Article 12 of the UAA states that:
If the arbitration agreement does not set a deadline, the mission of the
arbitral tribunal cannot exceed six (06) months from the date on which the
last appointed arbitrator accepted their appointment.
The legal or contractual time limit for the arbitration may be extended, either
by agreement of the parties, or at the request of one of the parties or of the
arbitral tribunal, by the competent court in the State Party.
Generally speaking, from the date of the acceptance of their appointment by the last
arbitrator for a panel of three or the sole arbitrator, the tribunal must render the award
within six months, unless parties have agreed otherwise. Where, as it does happen often,
the tribunal cannot issue the award within the allotted time, an extension of the time
limit must be requested, either by the parties or by the tribunal. As highlighted by
available cases, the procedural timetable set at the onset of an arbitral procedure is
provisional and may be extended where necessary under the conditions set by Article 12
of the UAA. In Prévoyance Assurances S.A. v. Eiffage Sénégal, the CCJA ruled that:
Under paragraph 1 of Article 12 of the UAA, which states that “if the arbitration agreement
does not set a deadline, the arbitrators’ duties may not exceed six months from the day
the last of them accepted it,” when the date of acceptance by the last arbitrator of his
mission is not established, as is the case, the arbitration deadline runs from the first
meeting between the parties and the arbitrators. In this case, that first meeting took
place on February 6, 2014, when the parties agreed with the arbitrators to “a period of
four (04) to six (06) months for the end of the proceedings”; the end of the arbitration
proceedings was thus set between 6 June 2014 at the earliest and 6 August 2014 at the
latest, in handing down its award on 4 August 2014, the Court of Arbitration did not rule on
an expired arbitration agreement, as the extension of the criticized deliberation proved

5
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 to be a simple change in the timetable without affecting the validity of the arbitration
agreement and the delay of the arbitration proceeding. It cannot support the annulment
of the arbitration award undertaken. Furthermore, it is in vain that the claimant avails
themselves of the lack of a decision of the supporting judge, then, on the one hand, that
the Court of Appeal based its decision on an extension agreed by the parties and, on the
other hand, that the deliberation was repeatedly extended without the parties and the
arbitral tribunal seeking the office of the State judge. Therefore, by ruling as they did, the
appellate judges did not violate Article 12 of the UAA referred to in the plea, which will be
dismissed as unfounded. (30)
In the same ruling, the CCJA validated the extension of deliberations to which a party has
not objected. (31) The new wording of Article 12 of the UAA clarifies the terms of time
extensions. It should be remembered that compliance with the deadline by the arbitral
tribunal is essential, because of the risk of a possible annulment of the award or all
procedural acts performed after the expiration of the said deadline if no extension has
been previously granted. The formulation and grammatical structure of Article 12
paragraph 2, in particular the positioning of the commas, seems to lend itself to the
following two interpretations. The first hypothesis is that the extension of the period may
be validly granted by the parties if they agree and without the need for recourse to the
competent court in the State Party housing the seat of the Court. Second hypothesis: in
all cases and even if the parties agree, only the competent court can authorize the
extension of the deadline. Both positions seem good, but while waiting for case law to
eventually determine the interpretation to be adopted of this provision, the first
hypothesis seems to be the best to retain, for the following reasons.
Arbitration being the business of the parties, its choice enshrines the expression of their
autonomy that everything should be done to promote. If for any reason, the arbitration is
not completed at the end of the time period and the parties are in favor of the extension,
there is nothing reprehensible or contrary to public policy to allow them to continue the
proceedings as long as they lend themselves to the game, as the CCJA held in Société
Camerounaise d’Opérations Maritimes v. Express Transport Khalifa. (32) Similarly, there is
no point in lengthening the procedure by a few weeks and increasing the legal fees and
fees of counsel to seek and obtain permission from a judge when the parties already
agree. To this end, it would be wise for the parties to provide in advance for the
interpretation to be adopted in the event that the need arises since there is no provision
in the UAA expressly prohibiting it and what the law itself does not require cannot be
demanded. (33) Arbitrators could also stimulate debate on the issue at the outset of the
proceedings and decide on a course of action should the need arise. In any event, it is
obvious that if only one party wishes the extension, or if the arbitral tribunal wishes to do
so and the parties together or one of them disagree, only the competent court will have
to decide.
[2] Under the CCJA Rules
Time limit is governed essentially by Article 15, paragraph 1, f) and 15.4. Article 15.1,
paragraph 1 states that:
15.1 After it has received the file, the arbitral tribunal convenes the parties or
their duly qualified representatives and counsel, to a case management
conference which must be held as soon as possible and not later than forty-
five (45) days from the date of referral of the case to the tribunal. During this
case management conference, the arbitral tribunal may require proof of the
power of attorney of any representative of a party if it deems it necessary. The
arbitral tribunal may, with the agreement of the parties, hold this meeting in
the form of a telephone conference or videoconference.
If a hearing is held, it must not take place more than six months at the maximum after
the date of the case management conference unless parties have agreed otherwise. (34)
Finally, the award must be written and signed within ninety days of the procedural
order of the tribunal closing the debates unless the time limit has been extended by the
Court, at its own initiative or upon request of the arbitral tribunal. (35)
The provisional nature of the procedural timetable of arbitration proceedings under the
CCJA Regulation has also been asserted on multiple occasions by the CCJA. First, it ruled
in Société Nationale Pour la Promotion Agricole v. Société des hydrocarbures du Bénin, (36)
and Ekwa Ngalle v. Société Nationale d’Hydrocarbures (37) that the change in the
procedural timetable does not systematically characterize a violation of its mission by
an arbitral tribunal since the timetable is provisional. Second, an arbitral tribunal
cannot be faulted for failing to render its award at the due date if, during the
deliberations, while the award was being drafted, the tribunal was faced with the need to
request additional information from the claimant to support its decision and was led to
overturning of the said deliberation in order to request and obtain from the CCJA the
extension of the period within which it was to render the challenged award. (38) Third, it
was ruled in Etat du Mali v. Seaquest-Infotel Mali, that failure of an arbitral tribunal to
notify to the parties the extension granted to the tribunal by the CCJA does not invalidate
the award and the challenge on that ground cannot prosper. (39) Fourth, there is no need
for an arbitral tribunal to hold a meeting with the parties before extending the

6
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 procedural timetable, (40) which must not, however, be construed by arbitrators as an
authorization to impose modification of the procedural calendar upon the parties.

[B] Service of Arbitral Awards

Under the UAA, the reader is encouraged to check the applicable local rules.
Under the CCJA Rules, service of an award is governed, under the CCJA Regulation, by
Articles 12 and 25. Titled “notification, communication and time limits,” Article 12 of the
CCJA Regulation on Arbitration states:
12.1 The memorials and all written communications submitted by any party,
as well as additional documents, are filed in as many copies as there are
parties plus one for each arbitrator and one electronic copy is sent to
the Secretary General.
Once the case has been referred to the arbitral tribunal, the latter and
the parties send the Secretary General an electronic copy of all
correspondence exchanged in connection with the proceedings.
12.2 All notifications or communications from the Secretary General and the
arbitral tribunal are served at the address or the last known address of
the party to which it is addressed, or their representative, as notified by
the latter or by the other party, is applicable. The notification or
communication may be made by delivery against receipt, registered
letter, transport service, email, or any other electronic method enabling
the proof of sending to be provided.
12.3 The notification or communication validly made is deemed established
when it has been received by the interested party or, if it has been
validly made in accordance with paragraph 12.2 above, should have
been received by the interested party or their representative.
12.4 The time limits set by this Regulation or by the Court begin to run the
day after the notification or communication is deemed to have been
made under paragraph 12.3 above.
When, in the country where the notification or communication was
deemed to have been made on a certain date, the day after it is a public
holiday or non-working day, the time limit begins to run on the first
following working day.
Public holidays and non-working days are included in the calculation of
time limits and do not extend them. If the last day of the allotted time is
a public holiday or non-working day in the country where the notification
or communication is deemed to have been made, the time limit expires
at the end of the first following working day.

After the arbitral tribunal has been constituted and with its agreement,
the parties may agree to reduce the different time limits provided for in
this Regulation. If circumstances warrant, the Court may, after
consultation with the parties, extend, at the request of the tribunal, such
a time limit or any other period resulting from this Regulation, to allow
the arbitral tribunal to perform its functions.
In addition to the possibility now available to the secretary-general to have any evidence
or element of the proceedings communicated by the tribunal or the parties, Article 12.2
specifies the terms of communication of the secretary-general and the arbitral tribunal
with the parties or their representatives, communications that can now be made by
email or any other electronic means to justify the sending. Also, procedural deadlines can
be modulated since it is now permitted to reduce or extend them in the context of
arbitration proceedings. Thus, the last paragraph of Article 12 allows the parties to
reduce the time of proceedings in agreement with the tribunal, after the constitution of
the latter. At the request of the tribunal, the CCJA is also permitted to extend any time
period under the Regulation after consultation with the parties. (41)
On the notification of arbitral awards, Article 25 of the Regulation states:
25.1 Once the award has been rendered and after the arbitration costs have
been fully paid to the Court by the parties or one of them, the Secretary
General notifies the signed award to the parties.
25.2 Additional copies certified by the Secretary General are issued at any
time to the parties requesting them.
25.3 By virtue of such notification, the parties waive the right to any other
notification or communication incumbent upon the arbitral tribunal.
The current version of the CCJA Regulation on Arbitration requires that arbitration costs
be paid to the CCJA rather than the secretary-general, as previously was the case. This
payment of the full arbitration costs, which may be made by one of the parties with
interest in having the award promptly notified for enforcement, is the last essential step

7
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 before notification of the award to the parties, which marks the end of the arbitration
process by discharging the tribunal, subject to an application for interpretation or
possible supplementation of the award.

[C] Publication of Arbitral Awards

Here also, the reader is encouraged to check the situation under each national
arbitration center according to the rules that may apply locally.
On the publication of arbitral awards rendered under the CCJA Rules, Article 14,
paragraph 3 of the CCJA Regulation on Arbitration states that “the Secretary General is
authorized to publish extracts from arbitral awards without mentioning elements
enabling the identification of the parties.”

§12.07 AWARD OF COSTS OF ARBITRATION AND LEGAL REPRESENTATION

There is not much to say on the costs and legal representation under the UAA since it is
left to the parties to organize in most cases except where local or national arbitrations
centers are referred to, and the rules of these apply. This situation must be handled on a
case-by-case basis, and parties are referred to any specific rules that may apply if a
center is involved.
On the Costs, under the CCJA Rules, Article 24 of the CCJA Regulation on Arbitration states:
24.1 The arbitral tribunal fixes the costs of arbitration in the arbitral award
and decides which of the parties is responsible for the payment or in
what proportion the costs are to be shared between the parties.
24.2 In fixing the costs, the arbitral tribunal takes into account the relevant
circumstances, including the extent to which each party has conducted
the arbitration proceedings swiftly and efficiently in terms of costs.
24.3 Arbitration costs include:
a) the fees of the arbitrator and the administrative costs fixed by the
Court, possible expenses of the arbitrator, operating costs of the
arbitral tribunal, expert fees and expenses in the event of an
expertise. The arbitrators’ fees and the Court’s administrative fees
are fixed in accordance with a schedule drawn up by the General
Assembly of the Court and approved by the OHADA Council of
Ministers under Article 4 of the Treaty;
b) the normal costs incurred by the parties for their defense,
according to the assessment made by the arbitral tribunal of the
related claims of the parties.
24.4 If the circumstances of the case make it exceptionally necessary, the
Court may, at its own initiative or upon a reasoned request of the
arbitrator, fix the fees of the arbitrator at an amount greater or lower
than the one that would result from the application of the schedule of
fees.
Any arbitrators’ fee-setting without the approval of the Court is null and
void, without it being a cause for the annulment of the award.
24.5 In the event that all claims are withdrawn or the arbitration is
terminated before a final award is rendered, the Court fixes the fees, the
costs of the arbitrators and the administrative costs. If the parties have
not agreed on sharing the costs of the arbitration or other relevant costs
issues, these issues are settled by the Court.
Article 24 calls for comments in five points: supplementation of the content of an arbitral
award (§12.07[A]), taking into account the behavior of the parties in setting the costs
(§12.07[B]), the faculty offered to the Court to directly adjust fees (§12.07[C]), the
limitation of the effects of setting fees outside the Court (§12.07[D]) and Jurisdiction of the
Court for any challenge on costs(§12.07[E]).

[A] Supplementation of the Content of an Arbitral Award

It appears from the first two paragraphs of the revised Article 24 (24.1 and 24.2) that an
arbitral award must contain the settlement of the costs of the proceedings and the
indication of the terms of payment by the parties. This is, therefore, an essential element
of the award, which supplements the information required by Article 22 of the Regulation.
The arbitrators will ensure this in their award.

[B] Taking into Account the Behavior of the Parties in the Settlement of Costs
An arbitral tribunal is now allowed to adjust the settlement and allocation of the costs to
be borne by the parties depending, among other things, on their general behavior during
the proceedings. Thus, the tribunal may, at its discretion, indirectly sanction the delaying
behavior of a party in ruling on the costs and fees.

8
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 [C] Faculty of the CCJA to Directly Adjust Fees
The CCJA was already allowed to adjust, up or down, the amount of the fees of the
arbitrator(s). Under Article 24.4, paragraph 1 of the CCJA Regulation on Arbitration, the
CCJA can now do so on its own motion, if circumstances so require.

[D] Limitation of the Effects of Setting Fees Outside the Court

Another substantial amendment to Article 24 consists of limiting the effects of an
increase in fees made between the parties and the tribunal outside the Court. It is now
expressly provided that such a situation cannot result in the annulment of the award. This
express provision now renders obsolete, for the future, the ruling of the Court in
Republique de Guinee v. Getma International, (42) where the CCJA annulled an award for
noncompliance with its mission by obtaining from the parties an increase in fees outside
the Court and despite its express refusal. (43)
This new provision is undoubtedly a source of relief for a part of the arbitration
community that has felt that the annulment of an award under these circumstances was
unjustified, but the OHADA Legislator does not seem to have taken any specific measures
to prevent regrettable behavior in the future, since any separate agreement between an
arbitral tribunal and the parties on fees was already prohibited and deemed null and
void by Article 9 of the Prescriptive Decision No 004/99/CCJA of February 3, 1999 Relating
to Arbitration Costs, (44) a public policy provision.
In other words, the OHADA Legislator appears to have maintained the status quo, as
arbitrators are now exempted in advance of any sanction in the event of an
unauthorized increase of their fees, which is a breach of their mission (45) constituting a
ground for annulment of their award, under Article 29.2 c) of the CCJA Regulation on
Arbitration. In any event, the ultimate solution for the parties in the event of difficulty
would be to firmly oppose any unauthorized increase, to refer it, if necessary, to the Court
by requesting the challenge of the arbitrator(s), which would still seem ineffective if the
deviant behavior occurred at the end of the proceedings when the award has already
been drafted.

[E] Jurisdiction of the Court for Any Challenge on Costs

The last paragraph of Article 24 reminds everyone that disputes relating to fees are
decided by the Court. These disputes fall under the “administrative decisions” of the CCJA
in matters of arbitration under Article 1 paragraph 7 of the Regulation on Arbitration and,
as such are without appeal.

§12.08 AWARD OF INTERESTS

Under both arbitration systems, there are no specific provisions on the interests, and a
tribunal can award interests in addition to any monetary relief(s) decided (generally
against the losing party) unless parties have stipulated otherwise.

References
1) UAA, Art. 19 para. 2. CCJA Regulation on Arbitration, Art. 20.
2) UAA, Art. 19 para 2.
3) CCJA Regulation on Arbitration, Art. 23.1.
4) UAA, Art. 11, para. 3. For an illustration of a challenge involving a partial award,
Commercial Bank of Cameroon v. Archidiocèse de Yaoundé, N° 242/2018, supra,
Chapter 2, fn. 13.
5) See supra, Chapter 7, §7.01.
6) UAA, Art. 22, para. 2. CCJA Regulation on Arbitration, Art. 26, para. 2.
7) Id.
8) UAA, Art. 22, para. 3. CCJA Regulation on Arbitration, Art. 26, para. 3.
9) UAA, Art. 21, para. 1; CCJA Regulation on Arbitration, Art. 22.3, para. 2.
10) See Art. 21 of the arbitration rules of the CAMEC (Benin). See supra, Abbreviations.
(International Trade Center, 2018), supra, Chapter 9, fn. 1.
11) See Art. 31 of the arbitration rules of CAMC-O (Burkina Faso). See supra, Abbreviations.
(International Trade Center, 2018). (International Trade Center, 2018), supra, Chapter
9, fn. 1.
12) See Art. 28 of the arbitration rules of the CACI (Ivory Coast). See supra, Abbreviations.
(International Trade Center, 2018), supra, Chapter 9, fn. 1.
13) See Art. 24 of the arbitration rules of the CECAM (Mali). See supra, Abbreviations.
(International Trade Center, 2018), supra, Chapter 9, fn. 1.
14) See Art. 28 of the arbitration rules of the CEMAN (Niger). See supra, Abbreviations.
(International Trade Center, 2018), supra, Chapter 9, fn. 1.

9
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 15) See Art. 37 of the arbitration rules of the CEMAC-CCIAD (Senegal). See supra,
Abbreviations. (International Trade Center, 2018), supra, Chapter 9, fn. 1.
16) See Art. 39 of the arbitration rules of CATO (Togo). See supra, Abbreviations.
(International Trade Center, 2018), supra, Chapter 9, fn. 1.
17) See Art. 33 of the arbitration rules of the Centre de Médiation et d’Arbitrage du GICAM
(Cameroon), See supra, Abbreviations.
https://www.legicam.cm/media/upload/2019049/reglement-darbitrage-cmag-1.pdf
[accessed May 8, 2020, at 21:54].
18) See Art. 32.4 of the arbitration rules of the CEMACO (Congo), See supra, Abbreviations.
https://economie.gouv.cg/sites/default/files/Documentation/Doing_Business/Lexec
ution_des_contrats/Le... [accessed May 8, 2020, at 21:56].
19) [Emphasis added]. The analysis appearing under this section of the book (§12.02[B])
has also been previously published in Mahutodji Jimmy Vital Kodo (Dir.), Code
Pratique Francis Lefebvre OHADA. Traité, Actes Uniformes et Règlements Annotés, supra,
Chapter 5, fn. 37, 231-233, reproduced with the permission of Editions Francis
Lefebvre.
20) [Emphasis added].
21) Cour d’appel [CA] [regional court of appeal] Lyon, 1e ch. civ., Jan. 15, 2004, GP 2004.
som.1979 (Fr), solution adopted under French law but transposable to OHADA. On the
failure of the tribunal to perform its mission, see Art. 29 of the CCJA Regulation on
Arbitration and infra, Chapter 14, §14.04[B].
22) See infra, Chapter 14, §14.07[B].
23) See the glossary, infra.
24) UAA, Art. 20, para. 8.
25) CCJA Regulation on Arbitration, Art. 22.1, para. 8.
26) In the English version of the CCJA Regulation on Arbitration published on the OHADA
Official website (https://www.ohada.org/attachments/article/2490/Reglement-
Arbitrage_CCJA-English.pdf [accessed Mar. 18, 2020, at 15:04]), there is a translation
mistake at Art. 22.3 para. 3 of the Regulation as it reads “a minority,” while the French
original and official version reads “one or two arbitrators” (“si un arbitre ou deux
arbitres refusent de la signer”). Thus, the proper translation has been restored by
replacing “A minority of them refuses” with “one or two arbitrators refuse”; otherwise,
the rule stated at that paragraph would be misleading and confusing since two
arbitrators out of three are simply not a minority. See Appendix II, infra. The analysis
appearing under this section of the book (§12.04[B]) has also been previously
published in Mahutodji Jimmy Vital Kodo (Dir.), Code Pratique Francis Lefebvre OHADA.
Traité, Actes Uniformes et Règlements Annotés, supra, Chapter 5, fn. 37, 230-231,
reproduced with the permission of Editions Francis Lefebvre.
27) For example, Art. 20 of the United Kingdom Arbitration Act of 1996 states:
Chairman.
(1) Where the parties have agreed that there is to be a chairman, they
are free to agree what the functions of the chairman are to be in
relation to the making of decisions, orders and awards.
(2) If or to the extent that there is no such agreement, the following
provisions apply.
(3) Decisions, orders and awards shall be made by all or a majority of
the arbitrators (including the chairman).
(4) The view of the chairman shall prevail in relation to a decision, order
or award in respect of which there is neither unanimity nor a
majority under subsection (3). Accessible at
http://www.legislation.gov.uk/ukpga/1996/23/section/20 [accessed
Mar. 20, 2020 at 16:53].
28) Article 22.4 of the CCJA Regulation on Arbitration states that “Any member of the
arbitral tribunal may give their personal opinion to the president, to be attached to
the award.”
29) See, for a comparison, Articles 19 and 21 of the UAA.
30) Prévoyance Assurances S.A. v. Eiffage Sénégal, supra, Chapter 3, fn. 39.

10
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 31) Id., ruling that it is wrong to criticize a judgment for stating that “by acknowledging
receipt of the said email by email from their counsel on 07/10/2014, worded as
follows: “Dear all, well received,” without having objected to the modification of the
deadline thus proposed (…), the [claimant] tacitly accepted the continuation of the
arbitral proceedings,” while the date of the deliberations decided by the parties and
the Arbitral Tribunal on Jul. 17, 2014 was extended by the latter by decision of Jul. 9,
2014; that it was not a simple proposal to extend the date that the parties could have
challenged; that in ruling in that way, the Court of Appeal, according to the argument,
distorted the facts of the case and exposed its ruling to cassation. This is so since the
extension of the deliberation made on Jul. 9, 2014 was not concurrent with the
rendering of the award and preceded Jul. 17, 2014, the date on which the award was
expected by the claimant; it follows that the latter had all the latitude to challenge
this measure, qualified by the Arbitral Tribunal as a readiness decision, and to
demand that the deliberations be continued on Jul. 17, 2014. In these circumstances,
the fact for the Court of Appeal to use the term “proposed” to evoke this change of
date, cannot constitute a distortion of the facts of the case of such a nature as to
justify the annulment of an award. Moreover, the claimant does not specify how the
alleged fact would have affected the mission of the Arbitral Tribunal; the plea is
therefore devoid of all relevance and will be rejected. It is also wrong to criticize a
judgment for refusing to set aside an award on the grounds that by acknowledging
receipt of the decision of the arbitral tribunal extending the deliberations without
making the slightest dispute, and by appearing before tribunal on the new date of
deliberation, the claimant tacitly accepted the continuation of the arbitration
proceedings until Aug. 4, 2014 while, according to the plea, that Art. 12 of the UAA
does not allow the arbitrators to extend on their own initiative the time limit for
arbitration; that the award having been rendered outside the contractual period of
arbitration accepted by the parties, the Arbitral Tribunal exceeded its mission and
ruled on an expired agreement; that thus, the Court of Appeal broke the law and
exposed its decision to the cassation.
32) Société Camerounaise d’Opérations Maritimes v. Express Transport Khalifa, N°
060/2017, Decision, [C.C.J.A.], 1e ch., (Mar. 30, 2017). The CCJA held that there is no
reason to set aside an arbitral award when the party requesting the setting aside has
produced documents before the arbitral tribunal after the expiry of the time limit
and has collaborated in the pursuit of the arbitration until the rendering of the
award without ever raising the irregularity linked to the expiration of the deadline.
33) Thales Security Systems v. Kattie, N° 30/2010, Decision, CCJA, 1e ch., (Apr. 29, 2010),
http://www.ohada.com/jurisprudence/ohadata/J-11-74.html.
34) CCJA Regulation on Arbitration, Art. 15.1, para. f).
35) CCJA Regulation on Arbitration, Art. 15.4. The CCJA was already allowed to extend the
time period for signing the award (90 days from the procedural order closing the
hearings) at the request of the arbitral tribunal. The Court itself can now extend the
time limit sua sponte (revised Art. 15.4) if the circumstances make it necessary. One
may wonder under what conditions the Court can use such power to extend the time
period and the future will no doubt provide us with illustrations.
36) Société Nationale Pour la Promotion Agricole v. Société des hydrocarbures du Bénin,
N° 045/2008, supra, Chapter 5, fn. 26. The CCJA held that the timetable of the
proceedings, established by the arbitral tribunal during the case management
conference at which, among other things, the subject of the dispute is defined, is
provisional. As that date is a forecast, it is subject to change; consequently, the
amendment of such a timetable, which had only a provisional or indicative
character, cannot be validly regarded as a violation by an arbitral tribunal of the
terms of its mission. That plea, which lacks relevance, must be rejected.
37) Ekwa Ngalle v. Société Nationale d’Hydrocarbures, supra, Chapter 2 fn. 31, holding
that the violation of Art. 15.4 of the CCJA Regulation on Arbitration does not constitute
ground for annulment of an award and it is settled case law that the timing of the
proceedings is provisional, subject to change. Consequently, the modification of such
a calendar made in accordance with Art. 15.4 of the aforementioned Regulation
cannot be validly considered as a violation by the tribunal of the terms of its
mission.
38) Société Nationale Pour la Promotion Agricole v. Société des hydrocarbures du Bénin,
N° 045/2008, supra, Chapter 5, fn. 26. The CCJA added that in the present case, and
contrary to the claimant’s contention, the tribunal had made known to the parties,
prior to Aug. 2, 2006, the reasons why it could not render its award on that date of
Aug. 2, 2006. For instance, the arbitral tribunal asked the claimant to produce a
number of exhibits and granted her a period of 30 days from the receipt of that
letter, and a period of fifteen days from the receipt of the above documents to the
respondent for their comments. It follows from all of the above that the plea is
unfounded and must be rejected.

11
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 39) Etat du Mali v. Seaquest-Infotel Mali, N° 027/2017, Decision, [C.C.J.A.], Ass. plen., (Mar.
2, 2017), http://www.ohada.com/jurisprudence/ohadata/J-17-161.html. For the CCJA, it
follows from Art. 15.4 of the CCJA Regulation on Arbitration that the arbitrator may
request from the CCJA, an extension of the statutory period of 90 days prescribed for
them to render their award. In the case at hand, the failure to notify the parties, by
the arbitral tribunal, of the extensions obtained by decisions of the Court, is not a
cause of nullity of the award. It is therefore wrong to criticize a tribunal for having
rendered the award under challenge after the arbitral proceedings have been
terminated, on the ground that the arbitration award was drafted outside the legal
time limit of 90 days, and because the decisions to extend this time limit were not
notified to the appellant, thus violating Art. 15.4.
40) Société Nationale Pour la Promotion Agricole v. Société des Hydrocarbures du Bénin,
N° 045/2008, supra, Chapter 5, fn. 26. The plea alleging that the challenged award
violates Art. 15.5 of the CCJA Regulation on Arbitration, in that, “after rendering the
partial award (…), the arbitrators did not believe they should convene a meeting
before imposing on the parties an expertise as well as a new timetable for the
enforcement of this measure” whereas, according to the plea, “this process is clearly
in contradiction with the provisions of Art. 15.5 of the Regulation on Arbitration, which
imposes a mandatory prerequisite for the meeting of the parties before establishing
a new calendar,” is not among the grounds for challenging an award rendered under
the aegis of the CCJA and cannot succeed.
41) For some illustration of this, see Ekwa Ngalle v. Société Nationale d’Hydrocarbures,
supra, Chapter 2, fn. 31, and Société Nationale Pour la Promotion Agricole v. Société
des hydrocarbures du Bénin, N° 045/2008, supra, Chapter 5, fn. 26.
42) supra, Chapter 3, fn. 8.
43) It must be stressed however, that the new provision at Art. 24 of the CCJA Regulation
on Arbitration only suppresses the annulment of an arbitral award as a sanction for
setting fees outside the Court. It does not change the fact that such practice
constitutes misconduct, even breach of public policy under the rules.
44) Supra, Introduction, fn. 24.
45) It is indeed established that in arbitration proceedings governed by a Regulation,
the violation by a tribunal of any provision of the applicable Regulation constitutes a
breach of its mission: see Pawelec v. Pernod Ricard, Cour d’appel [CA] [regional court
of appeal] Paris, 1e ch. C, Oct. 5 2000, GP 2001.som.1909 (Fr)., about the failure of an
arbitral tribunal to state the reasons of its award, as required by the applicable
regulation, but transposable to a regulation expressly deeming any unauthorized fee
increase null and void—a detail often evaded or ignored by critics of the Getma case.

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

12
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 13: Correction, Interpretation, and

Supplementation of an Arbitral Award
Publication As a general rule, once the award is rendered and notified to the parties, an arbitral
Arbitration in Africa under tribunal is discharged of the case, which is known as the fuctus officio doctrine (§13.01).
OHADA Rules Under certain circumstances, however, an arbitral tribunal may be required to interpret
(§13.02), to correct (§13.03), to supplement (§13.04) the award it has rendered. The
specific procedure for those will be presented (§13.05), and some comments will be made
on the revocation of fraudulently obtained awards (§13.06) and institutional appeals
Organization (§13.07).
Cour Commune de Justice
et d’Arbitrage de §13.01 FUCTUS OFFICIO DOCTRINE
l’Organisation pour
l’Harmonisation en Afrique Fuctus officio has been defined as “having fulfilled the function, discharged the office, or
du Droit des Affaires accomplished the purpose, and therefore of no further force or authority. Applied to an
officer whose term has expired, and who has consequently no further official authority;
and also to an instrument, power, agency, etc. which has fulfilled the purpose of its
creation, and is therefore of no further virtue or effect.” (1)
Bibliographic reference
The fuctus officio doctrine is enshrined in Article 22, paragraph 1 of the UAA and Article
'Chapter 13: Correction, 26, paragraph 1 of the CCJA Regulation on Arbitration, which states that “The award
Interpretation, and discharges (2) the arbitral tribunal of the dispute.” Unlike in some jurisdictions such as
Supplementation of an Canada where there seems to be no recognized exception to the fuctus officio doctrine,
Arbitral Award', in (3) the OHADA Legislator has recognized, like many other jurisdictions, (4) some
Mahutodji Jimmy Vital Kodo exceptions to the doctrine as presented in the following paragraphs on correction,
, Arbitration in Africa under interpretation and supplementation of an award.
OHADA Rules, (© Kluwer
Law International; Kluwer
Law International 2020) pp. §13.02 INTERPRETATION OF AN AWARD
117 - 120 Under Article 22, paragraph 2 of the UAA and Article 26, paragraph 2 of the CCJA
Regulation on Arbitration, an arbitral tribunal “has the power to interpret the award.”

§13.03 CORRECTION OF AN AWARD

An arbitral tribunal also has the power to “correct any material errors or omission
affecting [an arbitral award].” (5)

§13.04 SUPPLEMENTATION OF AN AWARD

Article 22 paragraph 3 of the UAA and Article 26 paragraph 3 of the CCJA Regulation on
Arbitration state that “Where the Tribunal has omitted to rule on a claim, it may remedy
the situation by rendering an additional award.”

§13.05 PROCEDURE FOR INTERPRETATION, CORRECTION OR

SUPPLEMENTATION OF AN AWARD
The request for interpretation, correction or supplementation of an award under the UAA,
“must be made within thirty (30) days from the notification of the award. The tribunal has
forty-five (45) days to rule. If the arbitral tribunal cannot be reconvened it falls upon the
competent court in the State Party to rule.” (6)
There is a slight difference under the CCJA Regulation on Arbitration as highlighted in
Article 26, paragraphs 4 to 8 of the CCJA Regulation on Arbitration which state:
In either of the above cases, the request must be sent to the Secretary General
within thirty (30) days of notification of the award.
The Secretary General communicates, upon receipt, the request to the arbitral
tribunal and the opposing party, granting the opposing party a period of thirty
(30) days to send its observations to the requesting party and the arbitral
tribunal.
If the arbitral tribunal is unable to reconvene, and absent any agreement
between the parties to appoint a new arbitral tribunal, the Court will appoint
a sole arbitrator to rule on the petition for interpretation, rectification or
supplementation of the award.
After adversarial assessment of the arguments of the parties and any
documents they may have submitted, the draft of the rectifying or additional
award must be sent to the Court for the preliminary examination under Article
23 of this Regulation within forty-five (45) days of referral to the arbitral
tribunal.

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 The foregoing procedure entails no arbitrator’s fees except in the case under
paragraph 6 of this Article. As for the costs, if any, they are borne by the party
who filed the application if it is dismissed entirely. Otherwise, they are shared
between the parties in the proportion set for arbitration costs in the award
subject of the motion.
The possibility now offered to an arbitral tribunal which has failed to rule on a claim to
“catch up” with an additional award also undoubtedly constitutes another means of
limiting the risks of the annulment of an award (for the failure of the tribunal to fulfill its
mission). While it is unquestionably advantageous for an arbitral tribunal, a party may
deplore having, in the best of cases, to waste time waiting for a tribunal to rule on a claim
initially omitted and in the worst case, to waste time and pay a new arbitrator (when the
initial tribunal can no longer be convened) to perform the mission to which the first
tribunal failed after being paid. Under such conditions, arbitration could become
unnecessarily too onerous for the parties, who would be the big losers.
A party wishing to file a request for interpretation, correction or supplementation of an
award must do so within thirty days of notification of the award; otherwise, the request
will be inadmissible.

§13.06 REVOCATION OF FRAUDULENTLY OBTAINED AWARDS

A fraudulently obtained award can be annulled if it is established before the competent
court that the fraud leading to the challenged award characterizes one of the grounds for
annulment under the applicable rules. (7)

§13.07 INSTITUTIONAL APPEAL

No institutional appeal mechanism is available under the OHADA rules. (8)

References
1) Black’s Law Dictionary Free Online Edition, https://thelawdictionary.org [accessed May
6, 2020] (Black, s.d.). See the glossary, infra.
2) [Emphasis added].
3) See for example the dissenting opinion (but concurring on the issue of fuctus officio
doctrine) of Justice L’Heureux-Dubé in Chandler v. Assn. of Architects (Alberta), [1989] 2
S.C.R. 848, at 867, https://scc-csc.lexum.com/scc-csc/scc-csc/en/524/1/document.do
[accessed Apr. 10, 2020, at 15:17]: “The doctrine of functus officio states that an
adjudicator, be it an arbitrator, an administrative tribunal or a court, once it has
reached its decision cannot afterwards alter its award except to correct clerical
mistakes or errors arising from an accidental slip or omission … ‘To allow the
adjudicator to again deal with the matter of its own volition without hearing the entire
matter “afresh” is contrary to this doctrine … .’”
4) In General Re Life Corp. v. Lincoln National Life Insurance, No. 17-2496 (2d Cir. 2018),
https://cases.justia.com/federal/appellate-courts/ca2/17-2496/17-2496-2018-11-
28.pdf?ts=1543419007 [accessed Apr. 10, 2020, at 15:48], the U.S. Second Circuit Court of
Appeals joined the Third, Fifth, Sixth, Seventh, and Ninth Circuits in recognizing, on
Nov. 28, 2018, “an exception to functus officio where an arbitral award ‘fails to address
a contingency that later arises or when the award is susceptible to more than one
interpretation,’” if the following three conditions are met: “(1) the final award is
ambiguous; (2) the clarification merely clarifies the award rather than substantively
modifying it; and (3) the clarification comports with the parties’ intent as set forth in
the agreement that gave rise to arbitration.”
5) UAA, Art. 22, para. 2; CCJA Regulation on Arbitration, Art. 26, para. 2.
6) UAA, Art. 22, para. 4 and 5.
7) See infra, Chapter 14 grounds for annulment of arbitral awards.
8) See infra, Chapter 15 on the procedure for annulment of arbitral awards.

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Part IV: Annulment, Third-Party Opposition and Revision

of Arbitral Awards
Publication Once the arbitral process has reached the stage of an award, the prevailing party must, in
Arbitration in Africa under many cases, overcome one last hurdle before being able to enforce their award, i.e., the
OHADA Rules challenge of the arbitral which, under OHADA rules, is made via a motion for annulment.
Given the heavy load of information that needs to be presented on the challenge of an
award, the grounds (Chapter 14) and procedure for annulment (Chapter 15) will be
presented separately, followed with the other less frequently used remedies which are
Organization third-party opposition and revision of arbitral awards (Chapter 16).
Cour Commune de Justice
et d’Arbitrage de
l’Organisation pour
l’Harmonisation en Afrique
du Droit des Affaires
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Bibliographic reference Kluwer Arbitration is made available for personal use only. All content is protected by copyright and
'Part IV: Annulment, Third- other intellectual property laws. No part of this service or the information contained herein may be
Party Opposition and reproduced or transmitted in any form or by any means, or used for advertising or promotional
Revision of Arbitral purposes, general distribution, creating new collective works, or for resale, without prior written
Awards', in Mahutodji permission of the publisher.
Jimmy Vital Kodo ,
Arbitration in Africa under If you would like to know more about this service, visit www.kluwerarbitration.com or contact our
OHADA Rules, (© Kluwer Sales staff at lrs-sales@wolterskluwer.com or call +31 (0)172 64 1562.
Law International; Kluwer
Law International 2020) pp.
121 - 122

KluwerArbitration

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 14: Grounds for the Annulment of Arbitral

Awards
Publication Initially, there were six grounds for the annulment of an arbitral award under the UAA and
Arbitration in Africa under four grounds under the CCJA Regulation on Arbitration. Article 26 of the UAA states that
OHADA Rules the motion for annulment is admissible only:
(a) if the arbitral tribunal has ruled without an arbitration agreement or on a null or
expired agreement;
Organization (b) if the arbitral tribunal has been improperly composed, or the sole arbitrator was
Cour Commune de Justice improperly appointed;
et d’Arbitrage de (c) if the arbitral tribunal has ruled without complying with the mission entrusted to it;
l’Organisation pour (d) if the adversarial principle has been breached;
l’Harmonisation en Afrique (e) if the arbitral award is contrary to international public policy; or
du Droit des Affaires
(f) if the award is devoid of any reason.
Under Article 30.6 of the CCJA Regulation on Arbitration prior to the reform of November
Bibliographic reference 2017, exequatur could be denied, or an arbitral award could be annulled on the four
following grounds:
'Chapter 14: Grounds for the
Annulment of Arbitral (1) if the arbitral tribunal has ruled without an arbitration agreement or on a null or
Awards', in Mahutodji expired agreement;
Jimmy Vital Kodo , (2) if the arbitral tribunal has ruled without complying with the mission entrusted to it;
Arbitration in Africa under (3) if the adversarial principle has been breached; or
OHADA Rules, (© Kluwer
Law International; Kluwer (4) if the arbitral award is contrary to international public policy.
Law International 2020) pp. As a result of the amendment of the Rules in November 2017, the grounds have been
123 - 170 harmonized in the two sets of rules by incorporating under the CCJA Regulation on
Arbitration, at Article 29.2, paragraph 2, the two other grounds of the UAA, namely the
improper composition of an arbitral tribunal (1) and the failure to state the reasons of an
award. (2) Thus, there are now six identical grounds for annulment of an arbitral award
under the two sets of rules: absence of a valid arbitration agreement (§14.02), irregular
composition of an arbitral tribunal (§14.03), failure of the tribunal to comply with the
mission entrusted to it (§14.04), breach of the adversarial principle (§14.05) and
international public policy (§14.06) and finally the failure to state the reasons of an
award (§14.07). Those grounds will be presented after highlighting an important limitation
of the annulment proceedings to the grounds under the applicable rules (§14.01). While
there are now six grounds for the annulment of an arbitral award under the CCJA
Regulation on Arbitration, it will also be demonstrated, hereafter, that the addition of
those two annulment grounds under Article 29.2 of the CCJA Regulation on Arbitration is of
little relevance if any at all.

§14.01 LIMITATION OF THE ANNULMENT PROCEEDINGS TO THE GROUNDS

UNDER THE APPLICABLE RULES
Under both the UAA (§14.01[A]) and the CCJA Regulation on Arbitration (§14.01[B]),
national courts, as well as the CCJA, have constantly ruled that only the grounds
mentioned by the Legislator for each arbitration system can be considered for the
annulment of arbitral awards and any ground other than those cannot lead to annulment.

[A] Under the UAA

An arbitral award governed by Article 26 of the UAA may be annulled only on the grounds
described above. National arbitration law may provide no legal basis for an action for
annulment for an arbitral award governed by the UAA. (3) The available case law
highlights the inadmissibility of motions for annulment of arbitral awards based on
national legislation (§14.01[A][1]), on other provisions of the UAA (§14.01[A][2]) or on an
alleged wrongful application of the law (§14.01[A][3]).
[1] Inadmissibility of a Ground Based on National Legislation
An application for the annulment of an arbitral award on the ground of a national legal
provision on arbitration is inadmissible. [Since the UAA is now the law governing
arbitration in the OHADA Member States, (4) and has replaced preexisting domestic
arbitration laws, leaving only possible organizational standards of institutional
arbitration which are not contrary to it.] This is the case since an action for annulment is
open only for the limited grounds listed in Article 26 of the UAA and no national provision
can validly serve as a basis for the annulment of an award. (5) The plea alleging that an
appellate court had violated Articles 11, 13 paragraphs 1 and 26 of the UAA by requiring
pre-arbitration proceedings leading to the annulment of the arbitration agreement

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 before the arbitral award itself may be challenged for annulment must be dismissed,
notwithstanding the determinations of the Court of Appeal which have no effect on the
merits regarding the grounds for annulment limited by Article 26 of the UAA since the
pleaded nullity of the arbitration agreement itself was dismissed. (6)
[2] Inadmissibility of the Alleged Violation of Other Provisions of the UAA
The argument alleging that an appellate court violated Articles 11, 13 paragraphs 1 and 26
of the UAA in that it required a pre-arbitration procedure in which the arbitration
agreement should first be set aside, in order for the arbitral award itself to be challenged
must be dismissed, notwithstanding the assertions of the Court of Appeal which have no
effect on the merits of the limited grounds for annulment set out in Article 26 of the UAA,
since the ground for annulment of the award based on the nullity of the arbitration
agreement has itself been rejected. (7)
[3] Inadmissibility of the Alleged Wrongful Application of the Law
The incorrect application of a law by the arbitrator, even proven, cannot, by itself,
constitute a failure by the arbitrator to comply with their mission under Article 26 of the
UAA. A challenge of an award on that ground lacks merits and must be dismissed. (8)

[B] Under the CCJA Rules

Under the CCJA Rules also, the available case law of the CCJA highlights the
inadmissibility of motions for annulment based on the alleged violation of other
provision of the CCJA Arbitration Rules (§14.01[B][1]), trouble to public policy (§14.01[B]
[2]), violation of law and contradictions in the reasoning (§14.01[B][3]), the alleged
violation of French lex arbitri (§14.01[B][4]), the unfounded failure to state the reasons of
the award (§14.01[B][5]) and the alleged failure to comply with the procedure agreed
upon (§14.01[B][6]).
[1] Inadmissibility of the Alleged Violation of Other Provisions of the CCJA Rules
The challenge of an arbitral award on the ground of violation of Article 15.5 of the CCJA
Regulation on Arbitration Rules, in that, “after making the partial award (…), the
arbitrators did not believe they should convene a meeting before imposing on the
parties the appointment of an expert as well as a new timetable for the enforcement of
this measure,” whereas, according to the argument, “this process is in sharp contradiction
with the provisions of Article 15.5 of the CCJA Regulation on Arbitration, which imposes a
mandatory meeting of the parties before a new timetable is established,” must be
dismissed because such ground does not fall under the grounds for annulment under
Articles 25 of the Treaty and 30.6 [which became 30.5] of the CCJA Regulation on
Arbitration. (9)
Likewise, the challenge based on an argument alleging the violation, by an arbitral
award, of Article 22.1 [which became 22.1 paragraph 8] of the CCJA Regulation on
Arbitration, on the grounds that the challenged award insufficiently states the reasons
upon which it is based must be dismissed since, under Article 29.2 of the CCJA Arbitration
Rules, the challenge of an award can only be based on one of the grounds listed under
Article 30.6 [which became 29.2] of the same Regulation, under which the insufficiency of
the reasons for the award does not appear. (10)
[2] Inadmissibility of the Alleged Trouble to Public Policy
The challenge of an arbitral award on the ground that the arbitral tribunal has “disturbed
public order in the course of the proceedings” is inadmissible. (11)

[3] Inadmissibility of the Alleged Violation of Law and Contradictions in the Reasoning
The request for annulment of an arbitral award on the grounds of violation of the law and
contradictions in the reasons of the award lacks merits and must be dismissed. (12)
[4] Inadmissibility of the Alleged Violation of French Lex Arbitri
The request for annulment of an arbitral award on the grounds of the violation of “French
lex arbitri,” namely French procedural law on arbitration, must be dismissed because as
far as the arbitration at hand was under the aegis of the CCJA, it is governed as such, only
by the CCJA Regulation on Arbitration. (13)
[5] Inadmissibility of the Unfounded Failure to State the Reasons of an Award
The challenge of an award on the ground that the award does not state the reasons upon
which it is based, ground not provided for in Article 30.6 of the CCJA Regulation on
Arbitration of March 11, 1999, must be dismissed. Thus, a party is therefore wrong to
reproach an arbitral tribunal of not having “dealt with their claims in an autonomous and
thorough manner,” while the tribunal devoted several pages to the claims of the opposing
party and maintained that they deduced from that behavior that the arbitral tribunal

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 stated no reason for its award with regard to the claims of the party which filed the
petition for annulment. (14) However, it must be noted that the ruling in Société Nestle
Camerooun v. Groupe Abbassi is no more valid because the failure to state the reasons of
an award has now been included in the grounds for annulment of an award under Article
29 of the CCJA Regulation Arbitration since the reform of 2017.
[6] Inadmissibility of the Alleged Failure to Comply with the Procedure Agreed Upon
The request for annulment of an arbitral award based on a failure to comply with the
prior conciliation procedure, notwithstanding the fact that the arbitral tribunal did not
expressly reply to this argument, is unfounded since it results from the documents in the
proceedings, in particular, from the request for arbitration and a letter served by a
bailiff, that the respondent has satisfied the requirements of preliminary conciliation by
notifying the claimant of the existence of the dispute, requesting the preliminary
conciliation and even taking care to propose a conciliator. Therefore, the request for
annulment must be dismissed. (15)
On the contrary, however, the inadmissibility of a request for annulment has been
wrongfully raised on the grounds that an appeal is opened only in the limited cases
under Article 30.6 of the CCJA Regulation on Arbitration since one of the grounds raised is
based on the noncompliance of an award with the mission of the arbitral tribunal. (16)

§14.02 ABSENCE OF A VALID ARBITRATION AGREEMENT

[A] Under the UAA
As a general rule under Article 26 of the UAA, an award rendered in the absence of an
arbitration agreement is void, and the Court may suspend its provisional enforcement.
(17) Enforcement of an arbitration clause negotiated by a third party is permitted when
the third party acted on behalf of the plaintiff. Therefore, a ruling by an arbitrator based
on the theory of appearance may not be annulled. (18)
Before presenting some cases illustrating how the absence of a valid agreement is
determined by courts (§14.02[A][2]), it is important to highlight the key role they play, as
the frontline of the annulment process, (19) in the assessment of the existence of a valid
agreement by arbitral tribunals (§14.02[A][1]).
[1] Review, by the Competent Court for Annulment, of the Assessment of the Agreement
Which Led an Arbitral Tribunal to Retain Jurisdiction
Under Article 26 paragraph 1 of the UAA, the Annulment Judge (20) has the power to
review the arbitral tribunal’s assessment of the arbitration clause or agreement that has
determined the tribunal to retain its jurisdiction under Article 11 of the UAA. In
proceeding with the arbitral tribunal’s interpretation of the ambiguous clause of the
articles of association of the corporation involved, the Court ruling on the annulment did
not violate Article 12 of the Uniform Act on Corporations. (21) The judgment is, therefore,
wrongfully criticized for having held that the clause stipulated in Article 45 of the articles
of association which led to arbitration is not an arbitration clause but rather organizing
a mere pre-conciliation procedure, whereas, according to the argument, the
aforementioned Article 11, establishes the priority of the arbitral tribunal to rule on the
existence or the validity of an arbitration agreement, the intervention of the annulment
judge being only incidental and residual; that by characterizing the clause as
pathologically non-open to arbitration, the Court of Appeal has misrepresented the facts
determined by the arbitrators through their judicial discretion and reviewed the merits
of the arbitral award, all things which are not within the office of the annulment judge.
The argument and the subsequent appeal must be dismissed. (22)
[2] Cases Where Absence of a Valid Agreement Was Not Determined
Under the available case law, three situations can be presented: non-expired arbitration
agreement (§14.02[A][2][i]), illiteracy of a party which has not hindered their ability to
negotiate (§14.02[A][2][ii]) and the validity of the arbitration agreement signed by the
agent of a party (§14.02[A][2][iii]).
[i] Agreement Not Expired
A claimant was wrong to maintain that the Arbitration Center of GICAM having appointed,
by letter of February 8, 2011, a sole arbitrator who accepted their assignment by letter of
the same day, the arbitral tribunal was constituted since that same date from which they
had a period of sixty days to issue their award so that on that date indicated in the award
as that of its issuance, that is, on February 3, 2012, the arbitration agreement had expired.
That is the case because the arbitral tribunal was formed following the decision of the
Arbitration Center dated December 13, 2011, by which the Arbitration Center confirmed
the arbitrators appointed by the parties and appointed the sole arbitrator initially
appointed as President of the Arbitral Tribunal. Since there have been less than six
months between this last date and that of the award, the argument must be rejected as
lacking merits. (23)
[ii] Illiteracy of a Party That Has Not Hindered Their Ability to Negotiate

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 The annulment of an award is wrongfully requested on the grounds of the non-existence
of an arbitration agreement since it is established in the file that by agreements of
December 2006 and March 2007, the parties have stipulated an arbitration clause by
which they intended to settle disputes relating thereto by arbitration. By retaining its
jurisdiction, the arbitral tribunal, therefore, did not rule without an arbitration
agreement. Finally, it has not been demonstrated that the supposed illiteracy of one of
the parties was likely to influence their ability to negotiate the transactions from which
they benefited, as well as their awareness of the guarantees provided by the parties in
relation to the settlement of disputes likely to arise from the implementation of those
agreements. It follows that the petition for annulment of the award is unfounded and
must be rejected. (24)
[iii] Validity of the Arbitration Agreement Concluded by an Agent
An arbitrator cannot be criticized for having ruled without an agreement containing the
arbitration clause on the ground that the agreement containing the arbitration clause
had been concluded by a third party since that person, in their capacity as manager of
the shop of the author of the annulment appeal, could only act in the name and on behalf
of the latter. Therefore, the trial judge was right in ruling against the plaintiff on the basis
of the theory of appearance. (25)

[B] Under the CCJA Rules

The proven absence (§14.02[B][1]) and the unproven absence (§14.02[B][2]) of a valid
arbitration agreement will be presented.
[1] Proven Absence of a Valid Arbitration Agreement
The consent of a party to refer a dispute to institutional arbitration under the CCJA Rules
cannot be presumed and no provision, neither of the Treaty nor of the CCJA Regulation on
Arbitration or the Rules of procedure of the CCJA, allows to imply consent to arbitration
and a waiver of objections to the arbitration from the lack of response to a letter
requesting it. Also, the defendant having provided no evidence of the verbal consent they
alleged, the arbitration tribunal that has ruled under such circumstances has ruled
without a valid arbitration agreement, and its award must be annulled with no need to
rule on the merits. (26)
[2] Unproven Absence of a Valid Arbitration Agreement
Three different situations can be presented: arbitration proceedings decided after state
courts have declined jurisdiction (§14.02[B][2][i]), implied arbitration offer accepted
(§14.02[B][2][ii]) and the clause providing for arbitration “in accordance with OHADA
Arbitration Rules” refers to arbitration under the CCJA Rules (§14.02[B][2][iii]).

[i] CCJA Arbitration Proceedings Decided after State Courts Declined Jurisdiction and Agreed
upon by Parties
To avoid denial of justice and subsequent legal uncertainty, equity and proper
administration of justice require that an arbitral tribunal necessarily hears and settles a
dispute that can be heard by no state court. It is so where state courts have ruled, by a
final and binding decision (27) based on the arbitration agreement of the parties, that the
case falls within the jurisdiction of an arbitral tribunal and not a state court. Although the
arbitration agreement does not expressly designate the Arbitration Centre of the CCJA,
the arbitral tribunal appointed by the CCJA has jurisdiction, since, on one part, no other
arbitration center has been chosen and on the other part, all parties have signed the
minutes of the case management conference (stating the subject matter of arbitration
and determining the course of the arbitral proceedings) and agreed on the application of
the CCJA Arbitration Rules for the proceedings, showing their common will to submit their
dispute to an arbitration panel under the aegis of the CCJA. (28)
The CCJA has also admitted the possibility of an unwritten arbitration agreement. (29)
[ii] Implied Arbitration Offer Accepted
The plaintiffs, who have consistently argued before the national courts that the
arbitration clause contained in the financing protocol is applicable to the defendant and
that the dispute between them must be submitted to arbitration, have thus made an
offer of arbitration to the defendant, a thesis corroborated by a judgment of the National
Supreme Court. The CCJA having, by the judgment of April 18, 2013, declared the arbitral
tribunal competent, stating that the minutes of the case management conference
determining the object of the arbitration and setting the arbitral proceedings have been
signed by all the parties who thus agreed to the application of the CCJA Regulation on
Arbitration as rules of procedure, thus demonstrating their common will to refer the
dispute to an arbitral tribunal under the aegis of the CCJA, the issue of the jurisdiction of
the arbitral tribunal can no longer be discussed in the same case and between the same
parties since that judgment of the CCJA acquired the authority of res judicata. Thus, the
contention that the award has been rendered without a valid arbitration agreement is
wrong. (30)

4
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 [iii] The Clause Providing for Arbitration “in Accordance with OHADA Arbitration Rules” Refers
to Arbitration under the CCJA Rules
The “OHADA Arbitration Rules” referred to in an arbitration clause stipulating that “any
dispute arising from the interpretation of the performance of the contract will be settled
by arbitration, in accordance with the OHADA Arbitration Rules; in the event of failure,
the parties will refer to the national courts of the country hosting the bank’s
headquarters” indisputably refer to the provisions of Title IV of the Treaty devoted to
institutional arbitration under the CCJA Rules and to which the parties must submit. It is,
therefore, right that the arbitral tribunal has declared itself competent to hear the
dispute referred to it and the argument contending that while the parties’ willingness to
go to arbitration can be inferred from the aforementioned arbitration clause, its terms do
not allow to say that it refers to the institutional arbitration under the CCJA Rules, as
stated by the arbitral tribunal and that the arbitrators, in handling the dispute, have
ruled without agreement is unfounded and must be rejected. (31)
It is true that there are two arbitration systems under OHADA Rules and this ruling in
National Financial Credit Bank v. N’Diaye that the clause referring to arbitration “under
OHADA Arbitration Rules” refers to the institutional arbitration under the CCJA Rules may
seem arbitrary. However, it seems justified because it has the greatest benefit to the
parties by allowing them to control the cost of arbitration by the existence of a schedule
of fees known in advance, to save time by allowing a single appeal against the award
before the CCJA, and which gives rise to a judgment not subject to exequatur proceedings
in the States parties to the Treaty, unlike an award which would have been rendered
under the UAA and for which exequatur proceedings would have required before the state
court in the State Party in which the arbitration seat was located, as well as the Court of
any other State Party in which enforcement of the award would be sought. The only
exception, in this case, would potentially be where the CCJA would have overturned, upon
referral, the judgment of the state court having annulled the award or denied exequatur
was handling the annulment and exequatur and determined that the award is valid, in
which case, exequatur granted by the CCJA would be enforceable in any of the OHADA
States Parties.

§14.03 IRREGULAR COMPOSITION OF AN ARBITRAL TRIBUNAL

[A] Under the UAA
As a general rule, the irregularity of the composition of an arbitral tribunal was erected
on a ground for the annulment of an arbitral award by Article 27 [sic] (32) of the UAA, and
no provision of the said Uniform Act subordinates the annulment of an award to the
evidence of damage by the party invoking the nullity; the judgment which held
otherwise must be quashed for [Article 26 of the UAA]. (33) There are cases where an
irregular composition was found (§14.03[A][1]) and others where it was not found
(§14.03[A][2]).
[1] Cases Where an Irregular Composition Was Found
There are situations where an arbitrator has been appointed by an institution different
from the one stipulated by the parties (§14.03[A][1][i]) and where an arbitrator is having
ties with counsel of the party who appointed them (§14.03[A][1][ii]).
[i] Appointment of the Arbitrator by an Institution Different from the One Stipulated
The irregular designation of the sole arbitrator by an arbitration institution other than
the one stipulated in the arbitration clause of the binding contract of the parties is
inadmissible, and the Court of Appeal which held that “it was in violation of the law that
the sole arbitrator was appointed by that institution” to set aside the disputed arbitral
award had complied with one of the conditions of admissibility under Article 26 of the
UAA. Consequently, the plea is unfounded and must be dismissed. (34)
[ii] Arbitrator Having Ties with Counsel of the Party Who Appointed Them
The arbitral tribunal is only regular if it is composed of independent and impartial
arbitrators, and if the procedure for its constitution is exempt from any defect. The
formal inquiry of the arbitral tribunal on the nature of the collaborative ties that the
arbitrator appointed by the claimant had with the counsel for the said claimant having
received no response to assess the impact of these undisclosed ties on the independence
and impartiality of the said arbitrator, it was through a fair application of Articles 7 and
26 of the UAA that the Court of Appeal retained “that it is settled case law that the
arbitrator must reveal any circumstance likely to affect their judgment and to provoke in
the minds of the parties a reasonable doubt on their impartiality and independence,
which are the essence of the arbitral function,” to annul the award. (35)

[2] Cases Where an Irregular Composition Was Not Found

5
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 There is a situation where a magistrate in office was appointed in violation of inoperative
national law (§14.03[A][2][i]), a situation in which the members of a tribunal have been
appointed under the rules of the center chosen by the parties (§14.03[A][2][ii]) and the
situation in which an untimely objection to the irregular composition of a tribunal was
raised (§14.03[A][2][iii]).
[i] Magistrate in Office Appointed Arbitrator in Violation of Inoperative National Legislation
The annulment of an arbitral award has wrongfully been requested for the irregular
composition of an arbitral tribunal, due to the appointment of a magistrate in the office
at the General Prosecutor’s Office at the Cassation Court as co-arbitrator, without the
consent of their hierarchy, whereas, according to the argument, national legislation (36)
prohibits Magistrates from “the exercise of any professional or wage-earning activity,” as
long as the regularity of the composition of an arbitral tribunal, within the meaning of
Article 26 of the UAA, is assessed only in the light of the procedure of its constitution
which must comply with Articles 5 and 8 of the UAA, impartiality and independence of the
arbitrator(s) who compose it. In the case at hand, there is no evidence of any violation of
the above provisions in the appointment of the challenged arbitrator, and neither its
independence nor impartiality vis-à-vis the parties is called into question; the argument
must be rejected. (37)
[ii] Appointment of Tribunal Members under the Rules of the Center Chosen by the Parties
It is wrong for a party to invoke the improper constitution of an arbitral tribunal, on the
grounds that the GICAM Arbitration Centre has appointed a President of the tribunal, even
before the litigants name their respective arbitrators, whereas the applicable legislation
on arbitration legislation provides otherwise, and that the subsequent decision by which
the arbitration center has confirmed the arbitrators and formalized that appointment,
cannot cover the alleged irregularity. This is the case, therefore, since Article 9.4 of the
GICAM Arbitration Regulations applicable to the dispute states that “If the parties have
not agreed to the number of arbitrators, the Center appoints a single arbitrator, unless
the dispute appears to justify the appointment of three arbitrators. In the latter case, the
parties have 15 days to appoint the arbitrators”; that under Article 15.2 of the same Rules,
“If one of the parties refuses or abstains from participating in the arbitration, it takes
place notwithstanding that refusal or abstention”; that it is established that it was at the
request of the plaintiff, and following the failure to respond to the defendant’s request
for arbitration, that the GICAM Arbitration Centre, applying the above provisions,
proceeded to appoint a sole arbitrator; that it was at the request of the defendant, to
which the plaintiff did not object, that the composition of the tribunal was changed, by
the addition of two co-arbitrators, when the sole arbitrator had already been appointed
and had already convened case management conferences, in which the defendant
actually participated. If in its correspondence of July 14, 2011 bringing to the attention of
the sole arbitrator the recomposition of the tribunal, the Center informed the sole
arbitration of its willingness to appoint him as President of the recomposed tribunal, it is
by subsequent decision, after each of the parties has appointed their arbitrator, that this
appointment has been formalized. The irregularity on which the defendant relies has,
therefore, not been demonstrated, as the principle of equal treatment of the parties in
the composition of the tribunal has been complied with, and the argument will be
rejected. (38)
[iii] Untimely Objection Relating to the Irregular Composition of a Tribunal
Relying upon Article 14, paragraph 13 of the UAA, the CCJA ruled, in Connexion Marketing v.
Synergie Gabon, that an untimely objection to the irregular composition of an arbitral
tribunal must be rejected. (39)

[B] Under the CCJA Rules

As mentioned earlier, (40) the irregular composition of an arbitral tribunal was not among
the four annulment grounds of an award under Article 30.6 before the reform of 2017,
which reproduced the exact same six annulment grounds under Article 26 of the UAA at
Article 29.2 of the CCJA Regulation on Arbitration. Thus, there is no case or ruling of the
CCJA on this issue.

§14.04 FAILURE OF THE ARBITRAL TRIBUNAL TO COMPLY WITH THE MISSION

ENTRUSTED TO IT
[A] Under the UAA
The obligation of national judges handling motions for annulment of arbitral awards for
noncompliance of a tribunal with its mission to state the reasons of their decision will be
presented (§14.04[A][1]), followed by decisions that did not find a breach of their mission
by arbitral tribunals (§14.04[A][2]).

[1] Obligation of Judges to Provide Grounds for their Judgment

6
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 To validly assert that arbitrators have not complied with their mission and set aside their
award under Article 26 of the UAA, a Court of Appeal must not only determine the scope
of the mission of the arbitrators, considering the arbitration agreement but also specify
in what way they have not complied with their mission, before drawing the consequences.
By failing to do so, the Court of Appeal made a misapplication of Article 26 of the UAA,
and its ruling must be reversed. (41)
[2] Decisions That Did Not Find a Breach of Its Mission by an Arbitral Tribunal
The cases that will be presented are relating to the wrongful application of the law by a
tribunal (§14.04[A][2][i]), the ruling on a claim for damages set out in the terms of
reference (§14.04[A][2][ii]), amiable composition not prohibiting application of legal
standards leading to a fair solution (§14.04[A][2][iii]), the absence of violation of the
provision of the rules of an arbitration center not chosen by the parties (§14.04[A][2][iv]),
an alleged fraud relating the date of rendering an award (§14.04[A][2][v]) and the
untimely objection to the expiry of the deadline for rendering an award (§14.04[A][2][vi]).
[i] Wrongful Application of the Law by an Arbitral Tribunal
On a judgment which held that the incorrect application of a law by an arbitrator, even
proven, cannot, by itself, constitute a violation of its mission by the arbitrator, under
Article 26 of the UAA, see Kouassi v. Armajaro. (42)
[ii] Tribunal Having Ruled on a Claim for Damages Set Out in the Terms of Reference
It is wrong to blame a:
– judgment ruling on the request for the annulment of an award for having violated
Article 26 paragraph 4 of the UAA, by not applying in the case at hand Article 143 of
the Civil, Commercial, Administrative and Financial Procedure Code [of Congo]
under which “the judge is bound to rule within the limits of the dispute, as
determined by the parties,” on the ground, according to the plea, that even if the
UAA does not have a provision to that effect, the fact remains that “certain
provisions of existing national laws on arbitration may also remain applicable, …”
and that it follows that the rule of Article 143 referred to could remedy the
shortcomings of [the UAA]. This is so since, contrary to the statements in the plea,
the arbitral tribunal has full latitude to rule on damages which, in the case at hand,
were expressly mentioned among the initial requests in the terms of reference of
the arbitral tribunal. The challenged judgment did not violate Article 26,
paragraphs 3 and 4, and the plea must be rejected. (43)
– tribunal for having not complied with its mission by ordering a party to pay
damages and other costs of the proceedings, while the arbitration agreement
limited the mission of the tribunal to “interpretation, enforcement of these or
obligations that may arise from the contract” because the arbitrator’s mission is
framed by the object of the dispute, which on its turn is determined by the
submissions and claims of the parties as set out in the minutes of the case
management conference setting out the proceedings; and that, under Article 15 of
the agreement of the parties, “the arbitral tribunal must rule in accordance with
applicable law in the Republic of Gabon … . ” By awarding damages to a party, as a
result of the dispute before it, on the basis of Articles 1147 and 1153 of the Gabonese
Civil Code, the arbitral tribunal ruled in law and therefore did not overstep its
mission. The plea must be rejected. (44)
[iii] Amicable Composition Does Not Prohibit the Application of Legal Standards Leading to
a Fair Solution
It is wrong to reproach an arbitral tribunal for having failed to comply with its mission by
ruling in law and not in equity as prescribed by the parties in their arbitration clause, in
particular, by confining itself to applying texts of law where fairness and trade usages
dictated a more conciliatory and measured solution, to take into account the interests of
the parties. This is the case even in the presence of a stipulation by the parties that, in
the absence of amicable settlement of disputes arising during the application thereof,
“exclusive jurisdiction is given to an arbitral tribunal which must rule in equity and as a
last resort,” since the mission of amiable compositeur does not prohibit the application of
legal standards, subject to the arbitrator verifying that they lead to a fair solution of the
dispute. In the case at hand, the plea will be rejected because the appellant has not
demonstrated in what way the challenged award is unfair as they claim. (45)

[iv] No Violation of the Provisions of the Rules of an Arbitration Center Not Chosen by the
Parties
In Prévoyance Assurances S.A. v. Eiffage Sénégal, (46) it has been held that no violation of
the rules of an arbitration center not chosen by the parties can be found. Thus, the
tribunal cannot have failed to comply with its mission, and the petition for the
annulment of the award must be rejected.
[v] Allegation of Fraud Relating to the Date of Rendering of an Award

7
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 The claim that a tribunal did not comply with its mission because the challenged award
stated it was rendered on February 3, 2012 at 12 noon, which was an inaccurate date
highlighting the fraud in the award, with the intended effect of anticipating the decision
to tie it to the deadline for rendering the award, and thus circumventing the argument
raised by the respondent, is wrong. This is so since this allegation is not supported by any
evidence from the file or the proceedings. The request for annulment must be rejected.
(47)
[vi] Untimely Objection Relating to the Expiry of the Deadline for Rendering an Award
Under Article 14, paragraph 13 of the UAA, “The party who, knowingly, fails to timely object
to irregularity and proceeds with the arbitration is deemed to have waived their right to
object.” Applying this provision in Société Camerounaise d’Opérations Maritimes v. Express
Transport Khalifa, (48) the CCJA held that there is no reason to annul an arbitral award for
the failure of the tribunal to comply with its mission when the party requesting the
setting aside has produced documents before the arbitral tribunal after the expiry of the
time limit and has collaborated in the pursuit of the arbitration until the rendering of the
award without ever raising the irregularity linked to the expiration of the deadline. In
other words, an untimely objection is inadmissible. (49)

[B] Under the CCJA Rules

Before illustrating how the failure of an arbitral tribunal to comply with its mission is
assessed by the CCJA, which leads it to determine whether a tribunal has complied with
its mission (§14.04[B][2]) or failed to do so (§14.04[B][3]), some general rules must be
highlighted (§14.04[B][1]).
[1] General Rules Relating to the Mission of Arbitrators
The first rule is about the determination of the scope of the mission of an arbitral
tribunal (§14.04[B][1][i]), followed by an important precision on the role of the judge
assessing whether an arbitrator has complied with their mission or not, in this that it is
not a mandate given by the judge to review the merit of the challenged award (§14.04[B]
[1][ii]).
[i] Delineation of the Mission of an Arbitral Tribunal
It is very important to always keep in mind that is it settled case law of the CCJA that the
scope of the mission of an arbitral tribunal is delineated by the object of the dispute,
which is determined by the claims and requests of the parties as set out in the minutes of
the case management conference setting out the subject of the arbitration and the
procedure. (50)
[ii] Prohibition of the Review of an Award on the Merits While Assessing Whether a Tribunal
Has Complied with Its Mission
The assessment of whether an arbitral tribunal has complied with its mission or not,
cannot be used as a pretext for the review of the merits of the award, but must only allow
the judge to ascertain whether or not the arbitrator(s) have, on the points where their
decision is criticized, complied with their mission, without having to assess the merits of
their decision. Any petition requesting for the contrary must be rejected. (51)

Likewise, the Court ruled in Etat du Mali v. Groupe TOMOTA that the argument alleging
noncompliance by an arbitrator with their mission cannot be for the purpose of reviewing
the merits of the award. It only allows the CCJA to ascertain whether or not the arbitrators
have complied with their mission, on the points where their decision is criticized, without
having to assess the merits of their decision. Under Article 15 of the CCJA Regulation on
Arbitration, the arbitrator’s mission is delineated primarily by the parties’ claims, as they
arise from the minutes of the case management conference setting out the proceedings.
In the case at hand, the arbitral tribunal, which found, under the Malian Law No. 87-31 of
August 29, 1987 on the general regime of obligations, and in accordance with its mission,
after analyzing the various elements produced and discussed by the parties, that the
State of Mali has breached its contractual obligations and, using its judicial discretion,
has set the compensation for the resulting damages for the co-contractor, therefore, has
not decided the case as amiable compositeur; it follows that the argument contending
that the arbitral tribunal has not complied with its mission must be rejected. (52)
[2] Cases Having Not Found Failure by Tribunals to Comply with Their Mission
There are at least ten cases illustrating various situations where the CCJA has determined
that arbitrator(s) have not failed to comply with their mission. They relate to the tort
liability retained without distortion (§14.04[B][2][i]), the award of damages by an arbitral
tribunal (§14.04[B][2][ii]), the modification of the procedural calendar (§14.04[B][2][iii]),
the preliminary search for an amicable settlement (§14.04[B][2][iv]), the reliance upon an
expert report as requested by a party (§14.04[B][2][v]) or upon relevant case law
applicable to the dispute at hand (§14.04[B][2][vi]), arbitration based on the minutes of a

8
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 case management conference not signed by all parties but approved by the CCJA
(§14.04[B][2][vii]), an arbitral tribunal wrongfully accused of having ruled as amiable
compositeur (§14.04[B][2][viii]), ruling against a party under an agreement covered by the
arbitration clause at hand (§14.04[B][2][ix]) and a tribunal accused of failing to apply, sua
sponte, a limitation of liability clause, and having become counsel of a party (§14.04[B][2]
[x]).
[i] Tort Liability Retained Without Distortion
It is settled case law that the mission of arbitrators, defined by the arbitration
agreement, is delineated primarily by the subject matter of the dispute, as determined
by the parties’ claims without focusing solely on the statement of the issues in the terms
of reference. Thus, the arbitral tribunal, finding by interpretation exclusive of any
distortion of the facts of the case, that the tort liability of the State of Mali “constantly
invoked by the State of Mali” is in the debate, has legally allowed itself, in respect of its
mission and without violating the adversarial principle, to retain the tort liability of the
State of Mali. In addition to the fact that the mission of arbitrator(s) is delineated
primarily by the object of the dispute as a result from the claims of the parties without
focusing solely on the statement of the points specified in the terms of reference, the
arbitral tribunal which retained tort liability and subsequently the remedy of the
damage by equivalent, in the form of damages in accordance with Article 123 of the
Malian Law applicable to the case, took into account all the elements allowing the
damage to be assessed, including the cost of acquiring the buses concerned in the case.
The request for annulment was dismissed. (53)
[ii] Award of Damages by an Arbitral Tribunal
The fact that an arbitral tribunal ruling on a claim for damages orders payment of
damages by breaking down the amount to be paid does not constitute a violation of its
mission. (54) Likewise, the arbitrators’ assertions on the facts referred to them and the
determination, by their judicial discretion, of the amount of damages to be awarded on
the basis of the facts submitted to their assessment do not justify the annulment of their
award. (55)
[iii] Modification of the Procedural Calendar
On the various rulings by which the CCJA ruled that because of its provisional nature, the
modification of the procedural timetable does not entail failure of the tribunal to comply
with its mission serving as a ground for annulment of the challenged award, see Ekwa
Ngalle v. Société Nationale d’Hydrocarbures. (56)
[iv] Preliminary Search for an Amicable Settlement
In Etat du Bénin v. Société Commune de Participation, the CCJA ruled that an arbitral
tribunal did not rule without complying with its mission with regard to seeking an
amicable settlement before deciding the case since it resulted from the award that one
party sought an amicable settlement of the dispute by letters and, conversely, the other
party unilaterally suspended the agreement, thus making its enforcement impossible.
(57)

[v] Reliance upon an Expert Report as Requested by a Party

The agreement, which is the basis of the contract between the parties and the related
legal texts, prevents any of them from being able to modify or terminate it during the
performance of the contract. It follows that the use of the expert’s report to determine
the amount of damages and loss of profit does not divert the arbitral tribunal from its
mission since it emerges from the proceedings that during the hearing, the Director of
Legal Affairs of the Requesting State declared that “(…) the Tribunal must only, in
assessing the damage which has been caused [to the Defendant], with documents or
evidence which do not suffer from any ambiguity (…). This is why, I insist on this, it takes
real expert work to determine exactly the harm which will have been caused [to the
Defendant] … .” (58)
[vi] Reliance upon Relevant Case Law Applicable to the Dispute at Hand
An arbitral tribunal cannot be reproached for having failed in its mission by excluding
provisions of the Public Procurement Code which have been declared unenforceable to
the case at hand by a Court of law of the Requesting State, on the ground that the
provisions excluded were enacted after the agreement of the parties. The agreement of
the parties provided that “In the event of termination by the Requesting State, and
without breach of the contracting party, the Requesting State undertakes to pay the other
party the sums corresponding to the shortfalls resulting from this termination …,” and
that it follows from the minutes of the case management conference that “the tribunal
may, on its own initiative or at the request of one of the parties, after hearing the parties,
appoint under Article 19.3 of the CCJA Regulation on Arbitration, one or more experts… .”
Consequently, the arbitral tribunal ruled in accordance with its mission and did not
violate Article 30.6-2 [which became] 30.5 b)] of the CCJA Regulation on Arbitration. The

9
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 petition for annulment must be rejected. (59) This ruling implicitly indicates that an
arbitral tribunal can validly rely upon relevant case law or jurisprudence in the
performance of its mission and cannot be accused of having failed to comply with its
mission on that sole basis.
[vii] Arbitration Based on the Minutes of a Case Management Conference Not Signed by All
Parties but Approved by the CCJA
It is wrong to blame an arbitral tribunal for failing in its mission since it resulted from a
decision of the CCJA (in its administrative capacity supervising arbitration proceedings)
that following the refusal of the appellants to participate in the case management
conference, the President of the Court, at the request of the arbitral tribunal, approved
the minutes of the meeting. The arbitral tribunal, in finding it had jurisdiction to settle
the dispute, on the basis of the aforementioned CCJA decision, has in no way breached
the minutes of the case management conference and subsequently has not failed to
comply with its mission since it does not result from the award that the arbitral tribunal
has ruled ex aequo et bono. Thus, the petition for annulment must be dismissed. (60)
[viii] Arbitral Tribunal Wrongfully Accused of Having Ruled as Amiable Compositeur
It is wrong to blame an arbitral tribunal for having ruled without complying with its
mission, in that it ruled as amiable compositeur because it was mistaken in the counting
of days; that “distorting the dies ad quem,” (61) the tribunal, therefore, considered that
the partnership agreement of July 13, 2006 had been continued, matching the expiry date
of the agreement with the date of the signing of the ninety-day extension, conditions
precedent, justifying the unilateral and abnormal nature of the termination which
occurred on May 2, 2007 at the initiative of the appellant. This is the case since the error
in the calculation of the deadlines, which could have been related to the absence of an
arbitration agreement, is not demonstrated, and the signature of the endorsement by the
parties on September 12, 2006, fell well within the scope of the partnership agreement,
on the other hand. (62)
[ix] Ruling Against a Party Under an Agreement Covered by the Arbitration Clause at Hand
It is wrong to reproach an arbitral tribunal for having exceeded its mission by awarding
the defendant compensations for their losses on the basis of a 2005 contract which is not
the subject of arbitration since the arbitral tribunal had previously indicated in the
award that the “2005 contract” was outside its jurisdiction and that “the agreement”
referred to by the tribunal in its award is the one signed by the parties and which was the
subject of the arbitration proceedings. (63)
[x] Tribunal Accused of Failing to Apply, Sua Sponte, a Limitation of Liability Clause and
Having Become Counsel of a Party
An arbitral tribunal is wrongfully accused of failing to comply with its mission, including
by failing to apply, on its motion, the “limitation of liability clause” and by “helping and
defending of one of the parties … .” in a correspondence, which, in the view of the party
challenging the award, was intended to induce a party to reconsider their claim which
would have been unfounded because the grievance of the arbitrator’s failure to comply
with their mission allows the Court to ascertain whether or not the arbitrator complied
with their mission, which is determined by the parties’ claims and requests, without
having to consider the merits of his decision. In the case at hand, the reason for the
annulment must be rejected, on the one hand, because the issue of the application of the
“limitation clause of liability” falls within the merits of the award which cannot be
reviewed by the CCJA; on the other hand, because, using its investigative power, the
arbitral tribunal has requested, by letter, clarifications of the parties on specific points
directly related to the facts submitted to it. This act, which falls within the normal course
of the arbitration proceedings, under Articles 19.1 and 15 of the CCJA Regulation on
Arbitration, cannot justify the annulment of the arbitral award and the petition for
annulment must be rejected. (64)
[3] Case Having Found Failure by Tribunal to Comply with Their Mission
As of date, the CCJA has found a failure to comply with its mission by arbitrators in only
one case. In the Getma case mentioned earlier, (65) the CCJA ruled that the increase of
fees directly negotiated by the arbitrators with the parties without the agreement of the
Court constitutes failure of the arbitral panel to comply with their mission. (66) Given the
high media coverage of this case and the criticisms which the CCJA was subjected to
following its ruling, it is useful to provide the full factual background of this sensitive
case.
In October 2011, the State of Guinea (67) and Getma International (68) agreed to resolve
their dispute concerning the termination of a Concession Agreement before an arbitral
panel of three arbitrators under the CCJA Rules. The CCJA ordered, under its arbitration
rules, that the parties pay for certain fees and costs in advance of the arbitration, which
amounted to about EUR 154,000, including approximately EUR 62,000 in arbitrators’ fees.
After the tribunal was constituted in early 2012, the tribunal sought permission from the
secretary-general of the CCJA (“secretary-general”) on or about April 11, 2013, to contact
the parties’ counsel about an increase in the arbitrators’ fees. The secretary-general

10
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 permitted the tribunal to do so on April 15, 2013. On April 22, 2013, the arbitral tribunal
contacted the parties about increasing the arbitrators’ fees from approximately EUR
62,000 to approximately EUR 450,000. By May 10, 2013, the parties had responded to the
arbitral tribunal, informing it that they had “no comments” regarding the request for
increased arbitrators’ fees.
The tribunal interpreted the parties’ silence on the fee issue as “hav[ing] no objection to
[the] fee revision,” and sought the parties’ confirmation of this interpretation. The parties
eventually agreed to the tribunal’s solicitation for increased arbitrators’ fees in June
2013. The tribunal then immediately notified the secretary-general of the parties’ consent
to increased arbitrators’ fees, and the secretary-general informed the tribunal that he
would “contact the [CCJA] soon to adjust the fees of the ... [tribunal].” However, on August
1, 2013, the CCJA denied the arbitral tribunal’s attempt to revise and increase the
arbitrators’ fees that the CCJA initially ordered, citing a 1999 CCJA precedent. (69) In
pertinent part, the 1999 CCJA precedent states:
The [CCJA] shall determine the arbitrator’s fees pursuant to [a fixed schedule],
or at its discretion where the amount in controversy has not been stated.
If the circumstances of the case render it necessary on an exceptional basis,
the [CCJA] may set the arbitrator’s fees at an amount that is greater or less
than the amount that would result from application of the scale ... .
When it sets the arbitrator’s fees, the [CCJA] shall take into consideration the
work done by arbitrator, the time spent, the speed of proceedings[,] and the
complexity of the dispute, so as to reach a figure within the limits provided
for, or above or below such limits under ... exceptional circumstances ... .
Where a matter is submitted to more than one arbitrator, the [CCJA] may, at its
discretion, increase the amount set aside for payment of fees, generally up to
a limit of three times that provided for a single arbitrator ... .
The arbitrator’s fees and expenses are set exclusively by the Court, in accordance
with the provisions of the Rules of Arbitration. Any separate arrangement
between the parties and the arbitrators concerning their fees is null and void.
(70)
Despite the CCJA’s August 2013 order, Getma lobbied the CCJA on September 19, 2013, to
reconsider its decision to deny the arbitral tribunal’s demand for increased fees. Shortly
thereafter, on October 3, 2013, the CCJA again declined to increase the initial arbitrators’
fees relying on the same 1999 CCJA precedent that it cited in its August 2013 order.
On April 30, 2014, the arbitral tribunal informed the parties that it had resolved the
parties’ dispute and would issue an award that included a demand for EUR 450,000 in
arbitrators’ fees. On or about May 19, 2014, the secretary-general contacted the tribunal,
notifying it that the secretary-general was in receipt of the tribunal’s April 30, 2014
communication to the parties.
After recognizing that the award would include a demand for increased arbitrators’ fees,
and notwithstanding the CCJA’s previous orders rejecting such a demand, the secretary-
general “formally prohibited” (71) the tribunal from seeking any increased arbitrators’
fees.
The tribunal ultimately issued an award in favor of Getma (EUR 39 million), which did not
include an increase in the arbitrators’ fees. After the arbitral tribunal issued the award,
the tribunal continued to express its frustration with the CCJA over the CCJA’s repeated
refusal to allow the tribunal to seek increased arbitrators’ fees from the parties. And
somehow, the tribunal eventually collected half of the increased arbitrators’ fees from
Getma (approximately EUR 225,000) in September 2014. But Guinea declined to follow
suit and pay any increased arbitrators’ fees, reneging on its promise to do so earlier.
On July 25, 2014, the Republic of Guinea filed an annulment petition with the CCJA, seeking
to have the CCJA set aside the arbitral award. On November 19, 2015, the CCJA, sitting en
banc, (72) annulled the arbitral award on the ground that the arbitral tribunal violated
the CCJA Arbitration Rules, and thus, the tribunal’s “mission” to conduct the arbitration
proceeding in accordance with those rules, in seeking increased arbitrators’ fees from the
parties, which only the CCJA had the authority to order the parties to do.
Afterward, Getma petitioned the United States District Court for the District of Columbia
to confirm and enforce the annulled award. Eventually, this Court also declined to
confirm and enforce the Getma award, which “has been lawfully ‘set aside’ by [the CCJA], a
competent authority [under the jurisdiction of which] the award was made.” (73)
The decision of the CCJA annulling the award in the Getma case has been highly criticized
by many reports that “did not examine the extent to which the tribunal’s conduct was
contrary to CCJA’s rules and express rulings.” (74) On December 9, 2015, the arbitrators
published an “open letter” to the arbitration community in the press, (75) in which they
“criticized the annulment decision as a ‘legal heresy,’ but based [their] analysis, in part,
on somewhat puzzling assertions, like ‘arbitrators’ compensation has nothing to do with
their task’ and ‘[t]he role of an international arbitration institution is to protect the
arbitrators that work under its aegis [.]’” (76)

11
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 It is appropriate to dwell on some of the main criticisms of the decision annulling the
arbitral award, namely:
– the CCJA, in its capacity of manager of the arbitral proceedings, intervened on
several occasions on the question of fees by taking positions contrary to those of the
parties, its secretary-general (who “encouraged” the tribunal to proceed and
request the increase by parties) and its President;
– since the parties agreed to pay the increased fees, the CCJA should not have
annulled the award, and by doing so, it exceeded its power;

– in managing arbitral proceeding and then ruling the on the merit where an award is
challenged, the CCJA would not be impartial because its acts as judge and party.
On the first issue, it is important to remember that, under the current state of the
applicable rules, the secretary-general of the Arbitration Center of the CCJA performs
purely administrative duties regarding arbitral proceedings. He is not a judge. Panels of
designated Judges of the CCJA overseeing arbitral proceedings in their capacity of the
administrative body under Article 1 of the CCJA Regulation on Arbitration are not bound
by the assessments of the secretary-general; neither is the CCJA itself while sitting en
banc to rule on challenges to arbitral awards. The same applies to arbitrators who, in
their capacity as “judges,” are not bound by statements of the secretary-general. It is
assumed that the arbitrators know the arbitration rules, and it was incumbent upon them
to assess the alleged statement of the secretary-general under the law applicable to
their mission, the limits of which they could not ignore before accepting it. (77)
As the United States District Court Judge correctly pointed out:
First, only the Secretary General permitted the tribunal to contact parties
about increasing the arbitrators’ fees (…). Getma cannot dispute that, the CCJA,
and not the Secretary General, has the ultimate authority and discretion to
increase the arbitrators’ fees. Second, to characterize the Secretary General’s
communication with the tribunal as “encouragement” is not entirely accurate.
The Secretary General permitted the tribunal to open discussions with the
parties about increasing the arbitrators’ fees and asked to be kept informed of
the “outcome” of those discussions (…). The Secretary general never
affirmatively represented that the CCJA would eventually approve any
agreement that the tribunal solicited—he merely informed the tribunal that
he would contact the CCJA about revising the arbitrators’ fees (…). Third, even
under the assumption that the Secretary General’s communication with the
tribunal served as a proxy for the CCJA’s tacit consent to solicit additional
arbitrators’ fees from the parties, the CCJA’s later rescission of that approval
was entirely consistent with CCJA precedent. And such conduct is not
repugnant to United States public policy, especially where courts in this
country are free to reconsider and change their rulings when the
circumstances demand that result, such as when controlling precedent has
been overlooked. (78)
In any event, after the CCJA expressly rejected twice the fee increase that it did not
decide and amount which it did not set, the arbitrators could no longer disregard the
authority of the Court without breaching the applicable rules. An author expressed the
same view by saying that “even faced with a terrible, horrible, no-good, very bad decision
on an issue that is within an arbitral institution’s exclusive competence and discretion, a
tribunal has only two choices: comply or resign.” (79)

The second issue on whether the annulment of the award constitutes an abuse of power of
the CCJA calls for some remarks.
First, it is important to always remember that the arbitration system under the current
rules of OHADA is twofold, as mentioned in the introduction: a general arbitration
governed almost exclusively (80) by the UAA and an institutional arbitration under the
aegis of the CCJA. On the legal regime of the latter, the CCJA has clearly established, at
least since July 17, 2008, that it is governed exclusively by the provisions of Title IV of the
Treaty, (81) the CCJA Regulation on Arbitration, the Arbitration Bylaws of the CCJA, their
appendixes and the fee schedule of arbitration in their drafting in force at the date of the
introduction of the arbitration proceedings. (82) In a ruling on November 29, 2011, the
CCJA referred to Article 23 of the UAA in an institutional arbitration case to underline the
authority of res judicata, which is also governed by Article 25 of the Treaty, only
applicable to that institutional arbitration case. Nonetheless, that was an isolated ruling
after which the CCJA has repeatedly reiterated its initial precedent on the inapplicability
of the UAA to institutional arbitration, (83) and the fact that the CCJA sometimes relies
upon Article 23 of the Treaty to overturn decisions of national courts which retained
jurisdiction despite the presence of an arbitration clause governed by the UAA and the
objection to their jurisdiction raised by a party like in Accor Afrique v. L’Etat Togolais (84)
should only be regarded as an exception to the rule according to which provisions of the
Treaty do not apply to arbitration proceedings under the UAA laid down in the

12
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 introduction, supra, and repeated in the present section.
In its petition to the CCJA for annulment of the award, Guinea contended that by letter
dated April 30, 2014 addressed directly to the parties, the President of the arbitral
tribunal informed the parties that the final award had been signed the day before and
that “it would be appropriate for arbitrators to be paid their fees prior to their
transmission of the award to the CCJA [for official notice to the parties by the Secretary
General of the CCJA].” Then, the President of the Court has retained the award for 23 days
after signing it, in order to obtain from the parties the actual payment of the amount
claimed. It was not until May 22, 2014 that the award was transmitted to the CCJA. In the
meantime, the President of the arbitral tribunal sent the electronic version of the award
directly to the parties before any formal notification thereof by the secretary-general of
the Court, the only one authorized to carry out that formality. Guinea finally contended
that this violation of the Rules of Arbitration has undermined the confidentiality of the
arbitral proceedings provided for by Article 14 of the said Rules since the content of the
award was published by the press in Jeune Afrique even before its formal notification to
the parties by the secretary-general of the Court. (85)

In its response, Getma petitioned the CCJA to grant exequatur and allow the enforcement
of the challenged award, relying on three arguments.
First, Article 10 of the UAA, provides that “The fact that the parties submit their dispute to
an arbitral institution requires them to apply the rules of that institution, except for the
parties to expressly disregard certain provisions of those rules.” (86)
Second, Getma contented that the parties signed an arbitration clause per which “each
party shall bear the cost of the arbitrator it appoints. Other costs incurred by the
arbitration shall be borne equally by the parties”; therefore, by agreeing to pay the
increased fees proposed by the chairman of the arbitral tribunal, the parties had
expressly rejected the provisions of Articles 24.1 and 24.2 of the CCJA Regulation on
Arbitration, under Article 10 of the UAA aforementioned.
Third, the violation by the arbitrators of the provisions of the CCJA Arbitration Rules
relating to the costs of the arbitration could not lead to the annulment of the award. (87)
The reasoning leading to the annulment of the award by the CCJA is full of lessons:
It follows from the combined provisions of the rules referred to in the plea (88)
that, under the CCJA Arbitration Rules, the arbitrators’ fees are fixed exclusively
by the [CCJA] in accordance with the scale annexed to Decision No 004/99/CCJA
Of 3 February 1999; if the circumstances of the case make it exceptionally
necessary, the [CCJA] may set the fees of arbitrators to a higher or smaller
amount than that which would result from the application of that scale; any
separate agreement between the parties and the arbitrator(s) over their fees is
null and void.
The aim of these provisions is to ensure that the parties who have decided to
submit their dispute to arbitration by the [CCJA] pay a foreseeable fee
proportionate to the actual value of the dispute and determined per a scale
known in advance.
The provisions of Article 10 of the [UAA] relied on by Getma are not applicable
in this arbitration case governed exclusively by the CCJA Arbitration Rules. (89)
Under Article 10.1 of the CCJA Regulation on Arbitration, the arbitral tribunal
which deliberately disregarded the essential provisions of the CCJA Arbitration
Rules to which the parties have willfully agreed to submit the settlement of
their dispute by the arbitration clause in their contract did not comply with its
mission, setting out its award for annulment. This is so since, on one hand, the
chairman of the arbitral tribunal has negotiated directly with counsel of the
parties in dispute and obtained their agreement for raising the amount of the
arbitrators’ fees after the Court has set it. On the other hand, the chairman of
the tribunal applied to the CCJA for the regularization of this increase, and the
Court rejected the request twice; notwithstanding those decisions of refusal,
the President of the arbitral tribunal obtained from the party who finally
prevailed, the payment of its share of the sum claimed, in addition to the
latter’s being ordered to pay the share of the party having been unsuccessful
in the arbitration. (90)
The ruling of the CCJA above can be summed in two points:
– institutional arbitration under CCJA’s rules is governed exclusively by a set of rules
not including any provision of the UAA;
– arbitration fees are set exclusively by the CCJA per its arbitration fees scale, but
where necessary, the fees can be raised exclusively by the CCJA itself upon
application of the arbitrators; any direct arrangement between the parties and
arbitrators is null and void. (91)
As a matter of fact, reliance upon the wrong rule (Article 10 of the UAA, inapplicable to

13
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 the case) led to the misfortune of the annulment of the award. The wording of Article 9 of
the Prescriptive Decision N° 004/99/CCJA of February 3, 1999 on arbitration costs, used by
the CCJA in its ruling, makes it a mandatory rule:
The fees and expenses of the arbitrator shall be determined exclusively by the
Court [CCJA], in accordance with the provisions of the Arbitration Rules. Any
separate agreement between the parties and arbitrators on their fees shall be
null and void.
Therefore, it can explain why the CCJA concluded the arbitrators did not comply with
their mission.
One could still argue, as Getma did in its petition before the CCJA, that the violation by
the arbitrators of the provisions of the CCJA Arbitration Rules relating to the costs of the
arbitration could not lead to the annulment of the award and by doing so, the CCJA
abused its power. (92)
However, there are some recurrent universal issues in international arbitration,
regardless of the legal system involved. When dealing with those issues, it is often useful
to delve into comparative law, especially precedents, because converging solutions
emerge from such comparison. Bias is one of those recurrent issues of international
arbitration relevant to the Getma case. As Justice Gzell J put it in Ict Pty Ltd v. Sea
Containers Ltd, “the test is an objective one: would a fair-minded lay observer reasonably
apprehend that the arbitrators might not bring an impartial and unprejudiced mind to a
resolution of the reference[?]” (93)
In the arena of international arbitration, “it is important that the arbitrators are seen by
the parties to be acting impartially, even-handedly and with rectitude.” (94) Some facts
from the published records of the Getma case need to be remembered here. After the
parties have filed for arbitration, the CCJA set the fees of arbitrators on October 24, 2011.
The arbitral tribunal signed the award on April 29, 2014 and its President sent a letter to
the parties on April 30, 2014, informing them that “it would be appropriate for arbitrators
to be paid their [increased] fees prior to their transmission of the award to the CCJA [for
official notice to the parties by the Secretary General of the CCJA].” Then, the President of
the Court allegedly has retained the award for 23 days after signing it, to obtain from the
parties the actual payment of the amount claimed. It was not until May 22, 2014 that the
award was transmitted to the CCJA.
The right of an arbitrator to exercise a lien on the award until he is paid his fees by the
parties is generally admitted in some jurisdictions, especially for ad hoc arbitration if
there is such a clause in the arbitration agreement or the agreement between the parties
and the arbitral panel. (95) However, that solution does not apply automatically to
institutional arbitration, as was the case for Getma. For instance, under Article 11.3 [which
became 11.4] of the CCJA Regulation on Arbitration, “Only claims for which the
requirements of paragraph 11.2 above are fully complied with are referred to the
arbitrator. If a request for advance is not satisfied, the Court … may invite the arbitral
tribunal to suspend its activities … .”
Therefore, under the CCJA Arbitration Rules, arbitrators can suspend the proceedings only
where the fees set or increased (96) by the CCJA itself per its fees scale have not been
paid by the parties; any attempt by the arbitrators to retain the award or suspend
proceedings to obtain payment of an increase not authorized and set by the CCJA could
be construed as “the pitting of the power of the arbitrators against the parties,” (97) that
would constitute misconduct. (98)
It can be assumed from the established facts of the case that the final award ruling
against Guinea has been rendered on April 29, 2014 (date of its signature), six months
after the second refusal by the CCJA to admit the increase of the arbitrators’ fees.
Therefore, one could think that since the award was already made long before the
payment of the increased fees by one party to the arbitrators, no bias could reasonably
be attributed to arbitrators in their ruling for Getma, who paid its share of the
increased fees. On the other hand, it does not seem impossible for others to assume that
Getma accepted to pay, despite consistent refusal by the CCJA, because the arbitral
panel ruled in its favor, even though this could seem farfetched.
One way or another, the behavior of the arbitral panel in this case regarding the
increased fees does not seem appropriate to avoid any bias because:
Once arbitrators have accepted appointment it does not accord happily with
their status to become involved in negotiations with the parties about fees or
any other matters in which they have a personal interest … . Once the
arbitrator has accepted the appointment, it is even less desirable for him to
conclude an agreement about fees or any other matter that affects him
personally with one party if the other party is not prepared to join in that
agreement.” (99)
It could well be said that the arbitrators “assumed such importance in their minds that
they allowed themselves to be swayed by [the concern of raising their fees] to the
detriment of their duty to maintain the appearance of acting in the interests of bringing

14
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 down a just award.” (100)
The New South Wales Court of Appeal upheld the ruling in Ict Pty Ltd v. Sea Containers by
saying that:
Once appointed, an arbitrator is no longer an entrepreneur so far as the
parties are concerned. The arbitrator accepts a quasi-judicial position
governed by law. Like a judge, not only must the arbitrator be impartial, the
arbitrator must not give the appearance of bias. … Attempts by an arbitrator
to renegotiate his contract after appointment can easily undermine the
confidence of one or more of the parties in the arbitrator’s ability to perform
the task he has agreed and is being paid to perform. (101)
Having settled the question on the misconduct of the arbitrators (in violating the
provisions of the CCJA Arbitration Rules regarding fees), one can wonder if the annulment
of the award was not disproportionate or, in other words, if the CCJA did not abuse its
power. This is a relevant question because under similar circumstances in other
jurisdictions, courts would have probably limited any sanction to removing the
arbitrators as they did in Ict Pty Ltd v. Sea Containers Ltd. (102) Since the increased fees
became an issue after the award has been rendered, there was technically no possibility
of removing the arbitral panel without annulling their award, given the circumstances
and the bias Guinea assumed in challenging the award. Had the fees increase become a
serious issue at an earlier stage of the proceeding, the CCJA could have used its powers to
remove the arbitral panel. (103)

As soon as they became aware that there would be a serious issue regarding the fees, the
arbitrators could have resigned as some arbitrators have done (104) since the applicable
rules allow their resignation. (105) Because the arbitrators did not resign and the CCJA
found they did not comply with their mission after the award was rendered, the only
possible remedy left seemed to be the annulment of the award because of the immunity
bestowed upon the arbitrators by the Treaty (106) and the seat agreement between the
State of Ivory Coast (where the CCJA is headquartered). (107) From that perspective, the
CCJA does not seem to have abused its powers in annulling the Getma award, given the
circumstances, since it is not the first time in international arbitration that violation of
clear guidelines regarding fees led to the annulment of an award. For example, in Y.
Mondeil v. J. de Ligault, the Court of Appeal of Paris, France ruled that by failing to comply
with the clear stipulation of an arbitration agreement, which imposed a sharing of
arbitration fees with no possibility to retain novation, the arbitrators have exceeded the
limits of their mission and their award must be set aside on that specific point. (108) If
an award can be set aside because the arbitrators have disregarded the agreement of
the parties regarding fees, it is not abusive to set aside another one where arbitrators
have disregarded mandatory rules regarding fees, as was the case for Getma.
Finally, about the supposed partiality of the CCJA, which would be both “judge and
arbitrator,” an idea which seems to be shared by several arbitration experts, it must be
remembered that the administrative functions of the CCJA in matters of arbitration (109)
cannot be confused with its judicial functions (110) in the event of a challenge to an
award, as highlighted in Chapter 5 (see §5.04[B]). A careful reading of Articles 1 and 2 of
the CCJA Regulation on Arbitration and Articles 2.5, 2.6, 3.1 and 3.2 of the Arbitration
Bylaws of the CCJA (111) brings out that the Court:
– designates some of its judges to serve a supervising panel of arbitral proceedings;
– makes decisions of an administrative nature, devoid of any force of res judicata,
without recourse and which reasons are not disclosed;
– does not itself settle disputes but merely appoints or confirms the arbitrators, is
informed of the proceedings and examines drafts of arbitral awards; and
– makes arrangements to prevent the members of the Court from being directly
involved in arbitration proceedings in their personal capacity.
It follows from the foregoing that the CCJA in its capacity as a judicial body is different
from the CCJA as an arbitration center. As stated above, in arbitration proceedings, the
CCJA does not judge, but confines itself (only judges who are members of a designated
panel overseeing a given case) to administrative tasks: initiating and supervising
arbitration proceedings, setting fees and Arbitrators’ fees, confirming the arbitrators,
arbitrating in the event of a challenge to an arbitrator by a party, etc.
The question of the supposed partiality of the Court is entirely subjective. However, the
institutional arbitration system of the CCJA is not flawed because the OHADA Legislator
has wisely arranged a divide between those two main functions of the Court mentioned
above. The measures taken by the CCJA through the arbitration center “are administrative
in nature,” (112) and in that capacity, the CCJA itself does not rule on the merit of the
cases submitted to arbitration. (113) In addition to those already presented in Chapter 5
(see §5.04[B]), several other cases from international jurisdictions also comfort this view.
For example, corresponds to an independent judgment:
– the decision handed down by a court of which a judge who had ruled on the case in

15
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 summary proceedings was a member since the fact that a magistrate decides on
the merits of a case in which he has previously taken interim measures does not
imply an infringement of the objectively assessed impartiality requirement; and
(114)
– the decision rendered by a court in which sat the judge-commissioner who, during
the observation period, had made orders for the day-to-day management of a
company, since those orders implied no prejudice on the matter to be decided by
the Court on the viability of the reorganization plan proposed by the applicant. (115)
In illustrating this point by a much easier example: assuming a corporation having in its
organizational structure a Chief Executive Officer (CEO), a Chief Financial Officer (CFO)
and a Chief Human Resource Officer (CHRO). One of the duties of the CHRO is to sit on
panels recruiting managers for the corporation, as well as on discipline committees along
with other top executives of the corporation. If a manager of the corporation later gets
involved in serious wrongdoing worthy of hearings by a discipline committee and
subsequent dismissal of the manager, it would not be fair to prevent the CHRO from
sitting on the discipline committee just because he was involved in the recruitment of
that manager. Indeed, this situation is far from arbitration proceedings, but there is a
similarity: while acting as administrative body overseeing arbitral proceedings, the CCJA
could be, to some extent, compared to the CHRO sitting on a recruitment panel. Its duties
and limited powers in this capacity are different from the situation in which the Court,
sitting en banc, will hear a challenge to an arbitral award. It could be argued that no
serious concern should be raised since, as previously mentioned, the panel of the CCJA
overseeing an arbitral proceeding does not get involved in the ruling by the arbitral
tribunal. Therefore, it does not seem relevant to be overly concerned about the CCJA
being judge and party.

§14.05 BREACH OF THE ADVERSARIAL PRINCIPLE

[A] Under the UAA
Cases finding that the adversarial principle has been breached (§14.05[A][1]), as well as
those finding that it has not been breached (§14.05[A][2]), will be presented.

[1] Cases Finding the Adversarial Principle Has Been Breached

The adversarial principle has been breached where evidence has not been displayed to a
party (§14.05[A][1][i]), where all the parties have not appeared before the self-appointed
arbitrator (§14.05[A][1][ii]) and where an award has been rendered on ex parte evidence
(§14.05[A][1][iii]).
[i] Failure to Disclose Evidence to a Party
Due process is one of the keystones of arbitral proceedings under the Treaty. The
adversarial principle implies that each of the parties has been able to assert their
claims, to know those of their adversary, and discuss them. For this principle to be
complied with, any document or exhibit produced during deliberation of the tribunal
must first have been communicated to the other party for possible comment or
discussion. In the absence of proof of communication of the exhibits produced, the
arbitral tribunal must either disregard the exhibits in its decision or reopen the hearings
for disclosure if the exhibit is likely to influence the ruling of the tribunal. By admitting
the exhibits produced by one party during its deliberations without their prior
communication to the other party and basing its ruling, even partially on these, the
arbitral tribunal has violated the adversarial principle, and its award must be annulled.
(116) The issue mentioned in the case seems similar to discovery proceedings under U.S.
law.
[ii] Nonappearance of All Parties Before the Self-Appointed Arbitrator
The adversarial principle has also been violated where it is not established that all the
parties appeared before the sole arbitrator, and the ruling was made hastily, after only a
few minutes’ deliberation while the hearing which commenced at the end of the morning
ended at 12:30. This irregularity exposes the award to annulment, as well as the judgment
granting exequatur. (117) Finally, the arbitrator who, in ruling against a party, did not rely
on the evidence discussed in adversarial proceedings exposes their award to annulment.
(118)
[iii] Award Made on the Basis of Ex Parte Evidence
The arbitrator who relied upon ex parte evidence to rule against a party exposes their
award to annulment for breach of the adversarial principle. (119)

[2] Cases Finding the Adversarial Principle Has Not Been Breached
The adversarial principle has not been breached where evidence has been received by a

16
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 party which abstained from discussing it (§14.05[A][2][i]) or where an objection raised by a
party has been joined to the merits by a tribunal (§14.05[A][2][ii]).
[i] Evidence Received by a Party but Not Discussed
The party which does not dispute having received the written evidence and observations
of the counsel of the opposing party and which has refrained from producing their own
evidence, thereby acquiescing to the expert report in question, cannot validly invoke the
breach of adversarial principle. (120)
[ii] Objection Raised by a Party and Joined to the Merits by the Tribunal
An arbitral tribunal is wrongly accused of having violated the principle of adversarial
procedure for having, while the debate was limited to the question of whether or not the
arbitration period had expired, rendered its final award, whereas it was necessary either
to make a partial award on the exception discussed or to join it to the merits and invite
the claimant to present their defense on the merit of the claim since the requests and
the arguments developed in support, on which the arbitral tribunal ruled in its award, are
contained in the request for arbitration of which the claimant does not deny having
received regular communication; that the plaintiff does not invoke any document or
writing which has not been communicated to them; that during the case management
conference fixing the course of the procedure, the same requests were made, the plaintiff
having declared to stick to their request for rearrangement of the arbitral tribunal. It
follows from the references to the award that during the hearings, the claimant
maintained their objection relating to the expiry of the period of arbitration “… asking
the arbitral tribunal to stick to this exception”; that the tribunal, which joined the
objection of the claimant to the merits, and did not base its decision on any argument
raised by the tribunal on its own motion, did not have to invite the claimant, to whom it
was free to do so, to present their defense on the merits. As the irregularity complained
of has not been demonstrated, the plea must be rejected as unfounded. (121)

[B] Compliance with the Adversarial Principle Under the CCJA Rules
To date, there is no known case in which an arbitral award has been annulled for breach
of the adversarial principle under the CCJA Rules. Thus, all the available cases
illustrate various situations in which the CCJA determined that there has been no breach
of the principle. The seven different categories that will be presented relate to parties
put in a position to discuss the evidence and arguments submitted to the arbitral
tribunal (§14.05[B][1]); the absence of an obligation to allocate the same time limits to
the parties (§14.05[B][2]); the optional nature of the use of an expert (§14.05[B][3]); a
majority award signed by all the arbitrators (§14.05[B][4]); an imprecise and vague
argument (§14.05[B][5]); the inoperative nature of a party’s deliberate refusal to
participate in the proceedings (§14.05[B][6]) and the absence of the alleged unequal
treatment and discussion of the applicable law (§14.05[B][7]).
[1] Parties Put in a Position to Discuss the Evidence and Arguments Submitted to the
Arbitral Tribunal
In similarity to UAA Article 26, the adversarial principle or due process is to be strictly
complied with under the CCJA Arbitration Rules. It has been held in Etat du Bénin v.
Société Commune de Participation that the adversarial principle complied with vis-à-vis a
party which became aware of the arbitration proceedings and filed a response in reply.
(122) The adversarial principle has also been complied with where each party has had the
opportunity to examine and discuss the exhibits and the pleas submitted to the arbitral
tribunal. Especially when it is stated in the award that “all the exhibits have been well
received and none of them were concealed; that the parties have had all the necessary
and useful time to debate … .” (123)
The adversarial principle presupposes that each of the parties has been able to discuss
the statement of the facts and the legal arguments which their opponents have opposed.
It was complied with when it appeared from the evidence of the proceedings that the
exhibit in the present case, the letter from a notary, was communicated during the
proceedings to the petitioners and that they even spoke freely on the said document;
that contrary to the assertions of the petitioners, it does not appear from the evidence in
the proceedings that the exhibits were removed or that the parties were not put in a
position to make known all that is necessary for the success of their request or their
defense, or that the challenged award was made exclusively on the basis of the notary’s
letter. Finally, there is no contradiction in the arbitral tribunal: (i) having rejected the
counterclaims of a party seeking to have the petitioners bear the costs incurred by them
in the arbitration proceedings as being new; and (ii) having ruled on those same claims
because it had the legal obligation under Article 24 of the CCJA Regulation on Arbitration
to liquidate the costs of the arbitration and to decide which party is responsible for the
payment, or in which proportion they are shared between the parties. The petition for
annulment must be dismissed. (124)

[2] No Obligation to Allocate the Same Time Limits to the Parties

17
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 If compliance with the adversarial principle requires that each party has been able to
make their case and discuss the arguments of their opponent so that nothing that served
as a ground to the arbitral award has escaped the debate, there is, however, no
obligation on the arbitrator to allocate strictly the same time limit for each claim. In the
case at hand, the petitioner who, on the one hand, signed the minutes of the case
management conference without any reservation and thus gave their agreement on the
provisional calendar contained therein and, on the other hand, effectively
communicated and filed their submissions within the time limits set out in the said
minutes, cannot validly invoke any violation of their rights. (125)
[3] Optional Nature of the Use of an Expert
Compliance with the adversarial principle presupposes that each of the parties has been
able to discuss the statement of the facts and the legal arguments which their
adversaries have opposed. Under Article 19.3 [which became 19.4] of the CCJA Regulation
on Arbitration, the issue of whether or not to appoint an expert is at the discretion of the
arbitrator and cannot constitute a reason for breaching the adversarial principle in
proceedings. That principle has not been breached where it results from the challenged
award that the parties have been put in condition, not only to make their case but also to
examine and discuss the exhibits as well as the arguments submitted to the arbitral
tribunal; rejection of the petition for annulment. (126)
[4] Majority Award Signed by All the Arbitrators
No violation of the adversarial principle may be held against the arbitrators as long as it
is not disputed that the arbitral award was made by a majority, was signed by the two
arbitrators and the dissenting opinion of the third arbitrator was attached, in accordance
with Article 22.4 of the CCJA Regulation on Arbitration. (127)
[5] Imprecise and Vague Argument
The argument alleging that an arbitral tribunal breached the adversarial principle in
awarding damages to the claimants in the arbitration proceedings to which they were not
parties, whereas the adversarial principle implies that even in the absence of a party,
the judge or the arbitrator must ensure that the request made by the appearing party
is justified, is vague, imprecise and must be rejected. That is the case because that
argument specifies neither the “claim made by the appearing party,” nor “the harm which
is foreign to them” and which would have benefited the claimants. (128) Likewise, when it
results from the challenged award that the parties have exchanged the pleadings and
produced their exhibits before the hearing, the CCJA is unable to hold that the principle
of adversarial proceedings has not been complied with since the argument does not
specify the exhibit which would not have been communicated to the petitioner. (129)
[6] Inoperative Nature of a Party’s Deliberate Refusal to Participate in the Proceedings
The deliberate refusal of a person to participate in arbitration proceedings does not
infringe the principle of adversarial proceedings since default arbitration is admitted by
Article 10.2 of the CCJA Regulation on Arbitration, according to which if one of the parties
refuses to participate in the arbitration, this takes place notwithstanding this refusal or
this abstention. Thus, the prong of an argument based on that contention lacks merit and
must be rejected. (130)
[7] Absence of the Alleged Unequal Treatment and Discussion of the Applicable Law
A challenged arbitral award is wrongly criticized for breaching the adversarial principle
based on the unequal treatment of the parties, the manner in which they have treated
within the award and the lack of discussion on applicable law as presented in the post-
hearing submissions, in that, on one the hand, the correspondence of the tribunal on April
24, 2016 had the sole purpose of allowing the defendant to find a more solid basis for
their claims and, on the other hand, the law applied was not discussed; that thus,
according to the petitioner, the arbitral tribunal “upset the balance of the trial (…) and
introduced the breach of equal treatment of the parties,” which should lead to the nullity
of the award. This is so because the fact for an arbitral tribunal to invite the litigants to
shed light on precise points of their dispute is part of the investigative powers of the
tribunal under Article 19.1 of the CCJA Regulation on Arbitration. It does not constitute an
unequal treatment of said parties characterizing the breach of the adversarial principle.
In the case at hand, the plea must be rejected since it follows from the challenged award
that the parties have validly made their case, including on the applicable law; that they
have examined and discussed the evidence and arguments submitted to the arbitral
tribunal. (131)

§14.06 BREACH OF INTERNATIONAL PUBLIC POLICY

The OHADA Legislator has not specified the content of the international public policy
under OHADA Rules, which needs to be “deciphered” (132) by case law. Consequently, “the
content of this public policy depends on the general interest of the geographic territory
under the Treaty and of the particular interests whose violation cannot be supported by

18
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 the OHADA legal order.” (133) The CCJA has taken the lead in the determination of the
international public policy of OHADA, through some decisions that will be presented
hereafter, both applying the UAA (§14.06[A]) and the CCJA Arbitration Rules (§14.06[B]).

[A] Under the UAA

Unlike exequatur granted under the CCJA Arbitration Rules, exequatur granted by a
national judge of a State Party to the Treaty is enforceable only in their country because
the public order is specific to each state and the one of a specific state could be
different from the one of another state. Thus, the judge who grants exequatur can only
make a decision having an effect in their own jurisdiction. So far, there are few cases
dealing with breach of public policy.
In Oryx Bénin v. Société Africaine de Distribution et de Négoce, the CCJA ruled that it is
wrong to reproach an arbitral award for being contrary to internal and international
public policy for having violated Article 76 paragraph 3 of the Bylaws of the Bar
Association of Benin by holding that the retainment of a lawyer has been duly authorized
by the President of the Bar Association whereas, according to the argument, this lawyer
obtained court decisions before being authorized by the President of the Bar Association
since it is established that by letter dated December 31, 2012, addressed to ad hoc
arbitral tribunal, the President of the Bar Association of Benin had given his consent to
the retainment of the lawyer concerned as counsel for the defendant. (134)

[B] Under the CCJA Rules

There is a majority of cases where the CCJA determined public policy has not been
breached (§14.06[B][2]) and few cases where there was a breach (§14.06[B][1]).
[1] Cases Where Breach of International Public Policy Have Been Found
Two examples will be presented, on res judicata (§14.06[B][1][i]) and the annulment of a
national decree by an arbitral tribunal (§14.06[B][1][ii]).
[i] Res Judicata
In order to properly discuss public policy violation issue under the CCJA, one must look at
the concept of res judicata. While it is a common law principle, such an issue is totally
applicable here because the CCJA operates as the final judge, similar to the French
Cassation Court, or even the Supreme Court of the United States, as mentioned in the
introduction. (135) This means that no decision of the CCJA can be challenged before any
other court in any of the seventeen States Parties to the Treaty. Even if it has been
challenged before a cassation Court, the judgment rendered by a Court of Appeal
between parties nevertheless remains a final decision having the force of res judicata as
long as it is not annulled. When a challenge to an arbitral award has been dismissed, the
award becomes irrevocable. The authority of res judicata, a fundamental principle of
justice ensuring the legal certainty of a situation acquired, cannot be violated without
violating the international public policy under Articles 29.2 and 30.6-4 [which became
30.5] of the CCJA Regulation on Arbitration. Therefore, the arbitrator who has ruled again
in the same case opposing the same parties has violated the international public, and
their award must be annulled. (136)
[ii] Annulment of a Decree by an Arbitral Tribunal
While it is common ground that an arbitral tribunal has jurisdiction to hear disputes
arising from the exercise by a State of its prerogatives as a public authority, as far as that
State may resort to arbitration in respect of its rights, that judicial power must be limited
to the question of redress owed to a private natural or legal person resulting from
damage due to the exercise of those prerogatives as a public authority, without having to
judge the validity of the acts taken by the State in exercising its prerogatives. It follows
that the award, which, instead of being limited to pecuniary penalties, declared that a
decree had no effect on the agreement of the parties and consequently decided that
the said agreement was not suspended as a result of that decree has violated
international public policy and must be annulled. (137)
[2] Cases Where Breach of International Public Policy Have Not Been Found
So far, at least nine situations have been identified relating to a dispute relating to
internal arbitration (§14.06[B][2][i]), an unclear argument (§14.06[B][2][ii]), the contractual
liability of a party determined by an arbitral tribunal (§14.06[B][2][iii]), a state enjoined
to stay its decision to suspend the enforcement of a contract (§14.06[B][2][iv]), the
jurisdiction of an arbitral tribunal retained on the basis of a judgment of the CCJA
(§14.06[B][2][v]), the extension of an arbitration clause to a non-signatory after
incompetence of state courts has been raised by petitioners (§14.06[B][2][vi]), the
extension of their agreement by the parties (§14.06[B][2][vii]), the inapplicability of the
Labor Code to the revocation of a corporate office (§14.06[B][2][viii]) and the application
of harmonized OHADA law and the French law on a supplementary basis (§14.06[B][2][ix]).

19
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 [i] Dispute Relating to Internal Arbitration
The dispute between two corporations under Beninese law relating to internal trade is a
matter of internal arbitration. And when it results from the arbitration clause under which
the dispute was submitted to arbitration, that the law applicable to the merits of the
dispute is Beninese law, it is wrong to invoke the violation of the international public
policy as an argument for an annulment the award made in such arbitration proceedings.
The petition must be rejected. (138)
[ii] Unclear Argument
The argument alleging breach of international public policy without specifying how the
challenged award would be contrary to international public policy cannot prosper since
the petition for the annulment of an arbitral award can only be based on one or many of
the grounds under Article 30.6 [which became 30.5] of the CCJA Regulation on Arbitration.
(139)

[iii] Contractual Liability of a Party Determined by an Arbitral Tribunal

The arbitral tribunal which analyzed the elements about the disputed agreement of the
parties, produced and debated inter partes, (140) to retain the petitioner’s liability,
deduced from it, on the basis of Malian Law applicable to the case, that the claimant
breached their contractual obligations and ordered them to pay compensation for the
damage suffered, did in no way breach international public policy and the petition for
annulment must be dismissed. (141)
[iv] State Enjoined to Stay its Decision to Suspend the Enforcement of a Contract
The arbitral tribunal which ordered a state to stay the enforcement of the decision of the
state to suspend a contract which it has freely signed or to have to repair the effects of its
act [through compensation], has not infringed the sovereign prerogatives of that state
and did not violate in any way international public order. Therefore, the challenge must
be dismissed. (142)
[v] Jurisdiction of an Arbitral Tribunal Retained on the Basis of a Judgment of the CCJA
An arbitral tribunal which declared itself competent by virtue of a judgment of the CCJA
has ruled on its jurisdiction under Article 11 of the UAA and 10.3 of the Arbitration Rules
and has, therefore, not violated the said Articles. Regarding the regularity or not of the
second arbitral tribunal established by the court, it should be recalled that when the
proceedings were resumed, the respondent proposed the appointment of an arbitrator,
unlike the claimants who proposed three. The parties were not agreeing on the number of
arbitrators, and under Article 3 of the CCJA Regulation on Arbitration, according to which
“If the parties have not agreed on the number of arbitrators, the Court appoints a sole
arbitrator, unless the dispute seems to justify the appointment of three arbitrators …,”
the CCJA, by an administrative decision not subject to appeal under Article 1.1 of its
Regulation on Arbitration, appointed a sole arbitrator. Consequently, the award is in no
way contrary to international public policy. (143)

[vi] Arbitration Clause Extended to a Non-Signatory After Incompetence of State Courts has
Been Raised by Petitioners
The claimants, who on their own have deduced that the contract binding them must be
extended to the respondent and that for this reason, the dispute must be settled through
arbitration, thus objecting to the jurisdiction of the state judges, cannot validly reproach
the award for being contrary to international public order in that the arbitral tribunal
extended the arbitration clause to the respondent who was not a signatory of the said
clause. This is the case because the objection has been sanctioned by final and binding
decisions having res judicata effect. Thus, the petition for annulment must be dismissed.
(144)
[vii] Extension of Their Agreement by the Parties
A claimant is wrong to criticize an award for being contrary to international public policy
for a poor calculation of the time limits which prevented them from raising the lapse of
the agreement between the parties which led to the dispute, since the parties have
waived their right to avail themselves of the non-fulfillment of one of the conditions
precedent of their agreement within the initial period, thus wishing to continue the
performance of the agreement under the new conditions adopted by them. This is so
since the parties have agreed in their agreement of July 13, 2006 that “The fulfillment of
the above conditions must be established by the two Parties in a common document,
which will thereby formalize the date of entry into force of the agreement. The conditions
precedent to the entry into force of the agreement above must have been fulfilled at the
latest sixty (60) days after the signature of the said agreement, unless the parties
mutually agree, before the end of this period, on a later date. The concession agreement
will automatically be terminated in the event that the conditions specified above are not

20
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 fulfilled by the deadline thus fixed;” that on September 12, 2006, the parties, represented
by the same persons, signed an amendment stipulating that “In order to finalize the
formalization for the entry into force of the Partnership Agreement signed on July 13, 2006
between [them], the two parties agree to postpone ninety (90) days from the signing of
this document (…). Thus, the deadline for entry into force of the agreement is fixed by
mutual agreement and for an additional period of ninety (90) days from September 12,
2006; during this period, the Tripartite Agreement for the management of the special
account (between the parties) will be signed as well as the finalization of the
specifications.” Since the agreement of the parties has been extended, the claimant was
wrong in claiming it has lapsed. It follows that the challenged arbitral award is not
contrary to international public policy, and the petition of its annulment must be
dismissed. (145)

[viii] The Labor Code Does Not Apply to the Revocation of a Corporate Office
It is wrong to blame an award for breach of international public order in that it had
flagrantly violated the Cameroonian Labor Code that the parties are supposed to apply
and which gives exclusive jurisdiction to Cameroonian jurisdictions, while compliance
with international public order postulates the taking into account and compliance with
national laws of the States, insofar as these laws do not violate the international
commitments of the State since, on the one hand, the dispute before the arbitral tribunal
arose from the revocation of the mandate of a managing director of a public limited
company by its board of directors falling under the provisions of the Uniform Act on
Corporations; and on the other hand, it does not appear from the file that this director
occupied, by the employment contract, another effective job in addition to his social
mandate. It follows that the exclusive jurisdiction of the Cameroon labor courts invoked
is not justified. Therefore, the award is not contrary to international public policy
because the dispute has been referred to the arbitral tribunal in accordance with the will
of the parties, and the petition for annulment must be dismissed. (146)
[ix] Application of Harmonized OHADA Law and French Law on a Supplementary Basis
An arbitral award has been wrongfully criticized for having violated international public
order, in that the arbitral tribunal has dismissed the arbitration clause without the
knowledge of the parties, has made a unilateral interpretation of the order of referral
without questioning the parties and ruling out the law of the parties, thereby failing to
comply with the will of the parties under Article 21 of the Treaty. So is the case where the
arbitral tribunal which, after assessing the case, determines that “since the [minutes of
the case management conference] is a consensual document requiring the signature of
the Parties alongside those of the members of the arbitral tribunal, under Article 15.2 of
the CCJA Regulation on Arbitration, it is ineffective for the petitioner to maintain that the
wording found cannot be considered to expressly modify Article 20.1 of the contract due
to the fact that the arbitral tribunal did not question the Parties on their intentions” and
“considers that the autonomy of the Parties, pivotal principle in international arbitration
in particular with regard to the determination by the Parties of the law applicable to the
merits of the dispute, commands to give full effect to the choice of the Parties freely
expressed in the minutes of the case management conference specifying unequivocally
the rules the parties wish to see applied to the resolution of their dispute,” to deduce
that it will apply “Harmonized law (Uniform Acts) applicable in the OHADA States Parties
and French law in a supplementary manner, according to the first item of their agreement
in the minutes of the case management conference,” did not breach international public
policy and the petition for annulment lack merits. (147)

§14.07 FAILURE TO STATE THE REASONS OF AN AWARD

[A] Under the UAA
The majority of the available cases presented hereafter demonstrates that it may be
difficult to get an arbitral award annulled for failure to state the reasons of the award
because it is sufficient for the arbitrator(s) to answer each claim or contention of the
parties (§14.07[A][1]). Once that is established, usually, the test is met, whether the
reasoning in law is right or not. None of the cases below has found a failure of a tribunal
to state the reasons of their award (§14.07[A][2]).
[1] Reasons Sufficiently Stated in the Award
The merits of each arbitration award must be clearly stated in the award. In a case
handled by a Court of Appeal in Cameroon, it has been ruled that an arbitral tribunal,
that ruled that “the termination by [Corporation A] of its various contracts with
[Corporation B] not only failed to comply with the forms prescribed in Article 7 of the
agreement, namely a formal notice by a registered letter which remained unsuccessful
but was not accompanied by a prior acknowledgment of the failure of the service
provider justifying the said termination, as provided for in Article 14 of the agreement;
that such violations of the law of the parties fall within the manifest bad faith of

21
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 [Corporation A] and constitute an abusive termination of the contracts made with its
above-mentioned agent (…),” had sufficiently justified its decision as to the liability of
the plaintiff in a breach of its contractual relationship with the defendant before it
ordered the plaintiff to pay compensation for the civil damage. Since no new evidence
has been provided to the court to justify the annulment of that award, it must be
confirmed in all respects. (148)
[2] Arbitral Award Containing a Response to All the Claims of the Parties
An arbitral award is wrongfully criticized for failure to state the reasons upon which it is
based, by not responding to the claims of the appellant and the contradiction between
the reasons of the award since the annulment judge found, using their judicial discretion
assessing the facts submitted to them, that the challenged award answered all the claims
of the parties. (149)
Likewise, an arbitral award is wrongfully criticized for having not stated the reasons upon
which it is based, in breach of Article 26-6 of the UAA whereas, on one hand, the tribunal
did not explain why it awarded the sum of 1,373,638,000 FCFA to the claimant instead of
the 1,901,531.060 FCFA claimed and, on the other hand, ordered the respondent to the
arbitration proceedings to pay damages to the amounting to FCFA 185,000,000, without
determining or under the law the fault committed by the respondent, since the argument
relating to the failure to state the reasons of the award, under Article 26 of the UAA, is a
formal requirement aimed at verifying that the content of the award responds to the
claims and arguments of the parties. It is not intended to serve as a ground for reviewing
the merits of the award or for assessing its merits by the Court handling the annulment
request. In the case at hand, the plea is unfounded and must be rejected, as long as it
appears from the reading of the award that it does contain the reasons in its wording.
(150)

[B] Under the CCJA Rules

As it was already highlighted in the chapter on form and content of awards, (151) the
newly imported sixth annulment ground of an arbitral award under Article 29.2 f) of the
CCJA Regulation on Arbitration, namely, an award “devoid of any reason,” seems
theoretical because Article 23.2 of the same Regulation has emptied Article 29.2 f) of its
substance since it allows the CCJA, during the preliminary examination of a draft award
under Article 23 of the Regulation on Arbitration, to draw the attention of the tribunal on
any “lack of reason” affecting the draft of their award. Each time the CCJA would choose to
use that prerogative on an award lacking the reasons on which it is made, an annulment
ground would inevitably be removed.
The absence of reasons for an arbitral award must be distinguished from the existence of
objectionable or erroneous reasons. Once the reasons for the award are stated in it, it
does not matter whether they are convincing or not (152) or objectionable, (153) which are
not grounds for annulment of the award. However, the reasons are lacking when the award
consists of a single operative part if no document or exhibit of the procedure makes up
for the absence of reasons. (154)

While it is true, as the CCJA has held in Ekwa Ngalle v. Société Nationale d’Hydrocarbures,
(155) that the contradiction of reasons is not as such a ground for the annulment of an
award under the CCJA Arbitration Rules, the other ruling of the CCJA in Barou Entreprise
des Travaux v. Société d’Exploitation des Mines d’Or de Sadiola, (156) according to which
the contradiction of reasons in a court judgment is equivalent to a lack of reasons, in that
the contradictory reasons cancel each other and may justify the quashing of the affected
judgment, seems transposable in matters of arbitration. The reason for this is that the
contradiction between the reasons of an award can have the same effect of annulment
and render, in some cases, the affected award unenforceable as things stand; and if an
award is unenforceable because of its reasons, that may amount to an absence of those
reasons, justifying, the annulment of the award under Article 29.2 f) of the CCJA Regulation
on Arbitration. Under such circumstances, the arbitral tribunal may well be found to have
failed to comply with its mission, which would also justify the annulment of the award,
because when the reasons for an arbitral award are required under institutional
arbitration rules, as is the case under the CCJA Arbitration Rules, their absence
constitutes a violation of their mission by the arbitrators. (157)
In light of the above, it may not be an exaggeration to assert that, in reality, this is not a
real ground for annulment. In any event, it remains to be seen in the future how those two
provisions of the CCJA Regulation on Arbitration (Articles 23 and 29.2 f)) will be reconciled
by the CCJA if an award is ever challenged on the ground of failure to state its reasons.

References

22
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 1) “If the arbitral tribunal has been improperly composed, or the sole arbitrator was
improperly appointed.”
2) “If the award is devoid of any reason.”
3) Constructions Metalliques Ivoiriennes v. Fraternite Saint Jean Eudes d’Abatta, N°
062/2012, supra, Chapter 5, fn. 1.
4) Under Art. 35 of the UAA and Art. 10 of the OHADA Treaty.
5) See Constructions Metalliques Ivoiriennes v. Fraternite Saint Jean Eudes d’Abatta,
supra, Chapter 5, fn. 1.
6) La société Bougainvilliers v. Mochet, N° 069/2015, supra, Chapter 5, fn. 12. [Emphasis
added]. In George Forrest Belgium v. Les Ciments du Sahel, N° 094/2020, Decision,
[C.C.J.A.], 2e ch., (Apr. 9, 2020), it was held that the Court of Appeal which dismissed
the motion for annulment of an arbitral award rendered after the six-month time
limit set by the applicable rules of the arbitration center, on the ground that
noncompliance with the time limit is not among the annulment grounds under Art.
26 of the UAA and also does not result from any provision of public policy of the UAA,
did not violate the said Art. 26 by misinterpretation and the appeal in cassation
against the judgment of the Court of Appeal must be dismissed. Likewise, under Art.
26 of the UAA, the regularity of the composition of an arbitral tribunal is assessed
only in the light of the procedure of its constitution, which must comply with Articles
5 and 8 of the UAA, the impartiality and independence of the arbitrators who
compose it, and not in consideration of the provisions of a national law. Therefore,
the judgment of the Court of Appeal which states that the party who was aware of
the composition of the arbitral tribunal and continued the arbitration without any
objection, “is deemed to have acquiesced to this composition and therefore waived
their right to object,” did not violate any rule justifying annulment of the award;
appeal in cassation dismissed.
7) Id.
8) Kouassi v. Armajaro, N° 037/2017, Decision, [C.C.J.A.], 3e ch., (Mar. 9, 2017),
http://www.ohada.com/jurisprudence/ohadata/J-17-171.html.
9) Societe Nationale pour la Promotion Agricole v. Societe des Huileries du Benin, N°
045/2008, supra, Chapter 5, fn. 26.
10) Etat du Niger v. Société Africard Co Limited, N° 141/2016, Decision, [C.C.J.A.], Ass.
plen., (Jul. 14, 2016).
11) Pyramidion v. Agence d’Exécution des Travaux d’Infrastructure du Mali, N° 098/2014,
supra, Chapter 6, fn. 16.
12) Ekwa Ngalle v. Société Nationale d’Hydrocarbures, supra, Chapter 2, fn. 31.
13) Id.
14) Société Nestle Cameroon v. Groupe Abbassi, N° 081/2019, Decision, [C.C.J.A.], Ass.
plen., (Mar. 28, 2019), http://www.ohada.com/jurisprudence/ohadata/J-16-71.html.
15) Benin Control v. Etat du Bénin, N° 103/2015, supra, Chapter 6, fn. 18.
16) Etat du Niger v. Société Africard Co Limited, N° 141/2016, supra, Chapter 14, fn. 10.
17) Cour d’appel [CA] [regional court of appeal] de L’Ouest, Apr. 8, 2009, N° 44/Civ.,
(Cameroon), http://www.ohada.com/jurisprudence/ohadata/J-12-219.html.
18) CA Abidjan, Apr. 20, 2001, 1ere esp., note P. Boulanger (Côte d’Ivoire),
http://www.ohada.com/jurisprudence/ohadata/J-02-127.html.
19) See, Chapter 15, §15.02, infra.
20) Namely, the competent court or judge in any State Party to the OHADA Treaty having
jurisdiction to rule on the challenge of an arbitral award under Art. 25 of the UAA.
21) Uniform Act on Commercial Companies and the Economic Interest Group,
https://www.ohada.org/attachments/article/537/AUSCGIE-
EN_Unofficial_Translation.pdf [accessed Apr. 11, 2020, at 17:58].
22) Wanmo v. Nguessi, N° 151/2017, supra, Chapter 2, fn. 21.
23) Commercial Bank of Cameroon v. Archidiocèse de Yaoundé, N° 242/2018, supra,
Chapter 2, fn. 13.
24) Société Générale Burkina Faso v. Nare, N° 012/2019, Decision, [C.C.J.A.], 1e ch., (Janv.
24, 2019).
25) CA Abidjan, Apr. 20, 2001, 1ere esp., supra, Chapter 14, fn. 18.
26) Etat du Mali v. CFAO, N° 039/2014, supra, Chapter 1, fn. 13.
27) Specifically, a decision having acquired the authority of res judicata.
28) Société Inter Africaine de Distribution v. Compagnie Malienne pour le
Développement des Textiles, N° 020/2013, Decision, CCJA, Ass. plen., (Apr. 18, 2013),
http://www.ohada.com/jurisprudence/ohadata/J-15-20.html.
29) Id.
30) Compagnie Malienne pour le Développement des Textiles v. Société Inter Africaine
de Distribution, N° 160/2016, supra, Chapter 1, fn. 33.
31) National Financial Credit Bank v. N’Diaye, N° 111/2017, Decision, [C.C.J.A.], Ass. plen.,
(May 11, 2017), http://www.ohada.com/jurisprudence/ohadata/J-16-71.html.
32) An error seems to have crept into the text of the judgment, which mentioned Art. 27
of the UAA instead of Art. 26.

23
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 33) Le Bistro Family v. Rosace Marbrée, N° 196/2018, supra, Chapter 2, fn. 11. However, in
George Forrest Belgium v. Les Ciments du Sahel, N° 094/2020, supra, Chapter 14, fn.
6, it was held that the regularity of the composition of an arbitral tribunal is
assessed only in the light of the procedure of its constitution, which must comply
with Articles 5 and 8 of the UAA, the impartiality and independence of the
arbitrators who compose it, and not in consideration of the provisions of a national
law. [Emphasis added].
34) ARNO c/ Libya Oil Cameroun, N° 006/2014, Decision, [C.C.J.A.], Ass. Plen., (Feb. 4,
2014), http://www.ohada.com/jurisprudence/ohadata/J-15-97.html.
35) Wanmo v. Nguessi, N° 151/2017, supra, Chapter 2, fn. 21.
36) Namely, Art. 13 of Law n° 12/94 on the Statute of the Magistrates in Gabon.
37) Airtel Gabon v. 2JTH-Gabon, N° 203/2018, Decision, [C.C.J.A.], 3e ch., (Nov. 22, 2018).
38) Commercial Bank of Cameroon v. Archidiocèse de Yaoundé, N° 242/2018, supra,
Chapter 2, fn. 13.
39) Connexion Marketing v. Synergie Gabon, N° 027/2010, Decision, [C.C.J.A.], 1e ch., (Apr.
29, 2010).
40) See supra, in the introduction to Chapter 14.
41) Delpech v. Sotaci, N° 010/2003, Decision, [C.C.J.A.], (Jun. 19, 2003),
http://www.ohada.com/jurisprudence/ohadata/J-04-65.html.
42) Kouassi v. Armajaro, N° 037/2017, Decision, [C.C.J.A.], 3e ch., (Mar. 9, 2017),
http://www.ohada.com/jurisprudence/ohadata/J-17-171.html.
43) ENI-Congo v. Etablissements MIC-Vidéo, N° 093/2017, Decision, [C.C.J.A.], 2e ch., (Apr.
27, 2017).
44) Airtel Gabon v. 2JTH-Gabon, N° 203/2018, supra, Chapter 14, fn. 37.
45) Le Bistro Family v. Rosace Marbrée, N° 196/2018, supra, Chapter 2, fn. 11.
46) Prévoyance Assurances S.A. v. Eiffage Sénégal, N° 220/2018, supra, Chapter 3, fn. 39.
47) Commercial Bank of Cameroon v. Archidiocèse de Yaoundé, N° 242/2018, supra,
Chapter 2, fn. 13.
48) See Société Camerounaise d’Opérations Maritimes v. Express Transport Khalifa, N°
060/2017, supra, Chapter 12, fn. 32.
49) It is good to mention the recent decision of the CCJA in George Forrest Belgium v. Les
Ciments du Sahel, N° 094/2020, supra, Chapter 14, fn. 6, where the CCJA dismissed a
challenge to an arbitral award rendered after the expiry of the deadline on the
ground that the petition did not meet any condition of Art. 26 of the UAA. It must be
noted that the Court did not say in this ruling that it is acceptable to disregard the
deadline for rendering an award; it only answered the petition on the specific point,
which was raised, as most cassation courts do. Thus, any party seeking the
annulment of an arbitral award rendered after the expiry of the allotted time
should file their petition on the ground of failure by the tribunal to comply with its
mission.
50) Pyramidion v. Agence d’Exécution des Travaux d’Infrastructure du Mali, N° 098/2014,
supra, Chapter 6, fn. 16; Etat du Mali v. Groupe TOMOTA, N° 033/2015, supra, Chapter
6, fn. 17; Société Nestle Cameroon v. Groupe Abbassi, N° 081/2019, supra, Chapter 14,
fn. 14. In Kabamba Mulangi v. DHL Global Forwarding DR Congo, N° 127/2020,
Decision, [C.C.J.A.], Ass. plen., (Apr. 30, 2020), the CCJA ruled that it is settled case law
that without having to examine the merits of a challenged award, the Court may
ascertain whether the arbitrators have complied with their mission defined by the
arbitration agreement and delineated primarily by the purpose of the dispute as
determined by the claims and requests of the parties. And where it appears from
the analysis of the arbitration agreement and the challenged award, on the one
hand, that the arbitrators ruled on all of the parties’ respective claims and requests
and, on the other hand, that they applied the appropriate rules to the merit of the
case, it cannot be found that they failed to comply with their mission.
51) Etat du Mali v. ABS International Corporate, CCJA, N° 011/2011, Decision, [C.C.J.A.],
Ass. plen., (Nov. 29, 2011).
52) Etat du Mali v. Groupe TOMOTA, N° 033/2015, supra, Chapter 6, fn. 17; see also Société
Nestle Cameroon v. Groupe Abbassi, N° 081/2019, supra, Chapter 14, fn. 14.
53) Etat du Mali v. ABS International Corporate, CCJA, N° 011/2011, supra, Chapter 14, fn.
51.
54) Ekwa Ngalle v. Société Nationale d’hydrocarbures, CCJA, N° 102/2015, supra, Chapter
2, fn. 31.
55) Benin Control v. Etat du Benin, CCJA, N° 103/2015, supra, Chapter 6, fn. 18.
56) Ekwa Ngalle v. Société Nationale d’Hydrocarbures, CCJA, N° 102/2015, supra, Chapter
2, fn. 31.
57) Etat du Bénin v. Société Commune de Participation, N° 104/2015, Decision, [C.C.J.A.],
Ass. plen., (Oct. 15, 2015), http://www.ohada.com/jurisprudence/ohadata/J-16-
97.html.
58) Etat du Niger v. Société Africard Co Limited, N° 141/2016, supra, Chapter 14, fn. 10.
59) Id.
60) Compagnie Malienne pour le Développement des Textiles v. Société Inter Africaine
de Distribution, N° 160/2016, supra, Chapter 1, fn. 33.
61) Dies ad quem is the date from which a time period is counted. See the glossary, infra.
62) Etat du Mali v. Seaquest-Infotel Mali, N° 027/2017, supra, Chapter 12, fn. 39.
63) Id.

24
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 64) Société Nestle Cameroon v. Groupe Abbassi, N° 081/2019, supra, Chapter 14, fn. 14.
65) See supra, Chapter 3 fn. 8.
66) Id.
67) Guinea is a Western African country, the capital city of which is Conakry. It is
different from Guinea Bissau (Portuguese-speaking and Bissau as capital city) and
Equatorial Guinea (Spanish-speaking and Malabo as capital city); all those are
African countries.
68) Getma International SAS is a French company registered in Paris, France.
69) Rather than a precedent, as mentioned in the records of the proceedings before the
U.S. Courts, the CCJA referred to a prescriptive decision it made in 1999 on the fees
and costs in arbitration under its Rules. See supra, Introduction, fn. 24.
70) [Emphasis added]. The facts presented here are taken from the ruling of the DC
Court, infra, Chapter 14, fn 73.
71) May 20, 2014 Letter From Secretary General to Getma at 6 (“I call your attention to
the fact that, if the final award includes the payment of the amount of €450,000 to
the arbitrators, in accordance with the invalid arrangement, the award will
potentially be subject to invalidation by . . . [the CCJA].”).
72) The Court sitting as a plenary, with all its judges. See the glossary, infra.
73) Getma Int’l v. The Republic of Guinea N° 14-1616, Mem Op. (D.C. Jun. 9, 2016)), supra,
Chapter 3, fn. 9. The decision of the District court has been affirmed by the United
States Court of Appeals for the District of Columbia Circuit on Jul. 7, 2017: Getma
International v. Republic of Guinea, No. 16-7087 (D.C. Cir. 2017), supra, Chapter 3, fn.
10.
74) Catherine Rogers, When Arbitrators and Institutions Clash, or The Strange Case of
Getma v. Guinea, http://kluwerarbitrationblog.com/2016/05/12/when-arbitrators-
and-institutions-clash-or-the-strange-c... [accessed Dec. 22, 2016, at 11:21] (Rogers,
2016). [Emphasis added].
75) Frédéric Maury, Affaire Getma-Guinée: les arbitres répondent,
http://www.jeuneafrique.com/285543/societe/affaire-getma-guinee-les-arbitres-
repondent/ [accessed Dec. 22, 2016, at 11:30] (Maury F., 2016).
76) Catherine Rogers, supra, Chapter 14, fn. 74.
77) It is important to remember that upon their appointment and before their
appointment is confirmed by the CCJA, each arbitrator receives a full set of the
applicable CCJA Arbitration Rules and commits to abiding by those rules by signing
a document that is part of their “arbitrator agreement.” See supra, Chapter 3, §3.01.
78) See supra Getma Int’l v. The Republic of Guinea N° 14-1616, Mem Op. (D.C. Jun. 9,
2016)), p. 1-11.
79) See Catherine Rogers, supra, Chapter 14, fn. 74.
80) UAA, Art. 15.
81) OHADA Treaty, Art. 21 to 26.
82) Ekwa Ngalle v. Société Nationale d’Hydrocarbures, N° 102/2015, supra, Chapter 2, fn.
31.
83) Etat du Mali v. ABS International Corporate, CCJA, N° 011/2011, supra, Chapter 14, fn.
51.
84) Accor Afrique v. L’Etat Togolais, N° 064/2020, Decision, [C.C.J.A.], 3e ch., (Feb. 27,
2020). See also Gomes v. Banque de l’Afrique Occidentale, N° 035/2010, supra,
Chapter 1, fn. 23.
85) Republique de Guinee v. Getma International, N°139/2015, supra, Chapter 3, fn. 8, p.
3-4.
86) [Emphasis added].
87) Republique de Guinee v. Getma International, N°139/2015, supra, Chapter 3, fn. 8, p.
5.
88) CCJA Regulation on Arbitration, Arts. 24.2, 24.3 and 25.1; Art. 9 of the prescriptive
Decision N° 004/99/CCJA of Feb. 3, 1999 on arbitration costs.
89) It must be noted that while sometimes Art. 23 of the OHADA Treaty is relied upon in
isolated cases by the CCJA in arbitration proceedings governed by the UAA, as it dit
in Accor Afrique v. L’Etat Togolais, supra, Chapter 14, fn. 84, the UAA is never applied
to proceedings governed by the CCJA Regulation on Arbitration.
90) Republique de Guinee v. Getma International, N°139/2015, supra, Chapter 3. fn. 8, p
5-6. [Emphasis added].
91) This second point is based on Art. 9 of the prescriptive Decision N° 004/99/CCJA of
February 3, 1999 on arbitration costs, according to which “The fees and expenses of
the arbitrator shall be determined exclusively by the Court, in accordance with the
provisions of the Arbitration Rules. Any separate agreement between the parties
and arbitrators on their fees shall be null and void.”
92) Republique de Guinee v. Getma International, N°139/2015, supra, Chapter 3, fn. 8, p.
5.
93) Ict Pty Ltd v. Sea Containers Ltd [2002] NSWSC 77 (Feb. 15, 2002) (Austl.) n°44.
94) K/S Nojarl A/S v. Hyundai Heavy Industries Limited [1992] 1 QB 863, Lloyd’s Rep. 260
(Eng.) 268.

25
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 95) See, for example, in Hong Kong, James Bruce Humphrey v. Dua Contractors & Co Ltd
[1997] CACV86/1996), available at:
http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp
?DIS=15507&QS=%24%2... [accessed Mar. 1, 2017 at 13:35]. In other jurisdictions, see R
v. South Devon Rly Co (1850) 15 QB 1043; Re Coombs and Freshfield and Fernley
(1850) 4 Exch 839 at 841 per Parke B; Roberts v. Eberhardt (1857) 3 CBNS 482, 28 LJCP
74. However, the rule seems to have been changed in the United Kingdom; for
example, see Cubitt Building and Interiors Ltd v. Fleetglade Ltd [2006] EWHC 3413
(TCC), 110 ConLR 36, [2007] All ER (D) 268 (Jan), available at:
http://www.bailii.org/ew/cases/EWHC/TCC/2006/3413.html [accessed [Mar. 1, 2017,
at 13:45], where it was ruled that an adjudicator of a dispute arising under a
construction contract was not entitled to exercise a lien on the decision until
payment of fees, either as a matter of contract or at law.
See also St Andrew’s Bay Development Ltd v. HBG Management Ltd [2003] Scot CS
103, available at: http://www.bailii.org/scot/cases/ScotCS/2003/103.html [accessed
Mar. 1, 2017, at 13:49], at 19.
96) As mentioned earlier, Art. 24.3 of the CCJA Arbitration Rules provides that “Where
prevailing circumstances so exceptionally require, the Court [CCJA] may fix the fees
of the arbitrator at an amount inferior or superior to the one indicated on the scale
of fees.”
97) See Ict Pty Ltd v. Sea Containers Ltd [2002] NSWSC 77, supra, Chapter 14, fn. 93, n°39.
98) See id. n°42.
99) K/S Nojarl A/S v. Hyundai Heavy Industries Limited [1992] 1 QB 863, Lloyd’s Rep. 260
(Eng.) 268.
100) See Ict Pty Ltd v. Sea Containers Ltd [2002] NSWSC 77, supra, Chapter 14, fn. 93, n°37.
101) Sea Containers Ltd v. Ict Pty Ltd [2002] NSWCA 84 (Apr. 18, 2002) (Austl.) n°11.
102) See Ict Pty Ltd v. Sea Containers Ltd [2002] NSWSC 77, supra, Chapter 14, fn. 93, n°50;
Sea Containers Ltd v. Ict Pty Ltd [2002] NSWCA84 (Apr. 18, 2002) (Austl.) n°2, 102.
103) Under Art. 4.4 of the CCJA Arbitration Rules, “An arbitrator must also be replaced
when the Court finds that the arbitrator is de jure or de facto prevented from
carrying out their mission or that the arbitrator is not performing their duties in
accordance with Title IV of the Treaty or with this Regulation, or within the
prescribed time limits.”
104) See, for example, resignation of Mr Steele in K/S Nojarl A/S v. Hyundai Heavy
Industries Limited [1992] 1 QB 863, Lloyd’s Rep. 260 (Eng.) at 263, 264.
105) See Art. 4.4 of the CCJA Regulation on Arbitration, Appendix II, infra.
106) Under Art. 49 of the OHADA Treaty:
Under conditions laid down by regulation, Civil servants and employees
of OHADA, Judges of the Common Court of Justice and Arbitration as well
as arbitrators appointed or confirmed by the Court enjoy diplomatic
privileges and immunities during their duties.
The immunities and privileges referred to above may be lifted by the
Council of Ministers depending on the circumstances. Furthermore,
Judges shall not be prosecuted for anything done outside the scope of
their duties except with the authorization of the Court.
107) Under Art. 15 of the seat agreement between Ivory Coast and the CCJA:
“The President, the (…) Vice-Presidents, the (…) judges, the Chief
Registrar, the Experts, the Arbitrators, the Consultants and the Officials of
the Court shall enjoy in the territory of Côte d’Ivoire the following
immunities, privileges and exemptions: a) Immunity from jurisdiction,
even after the termination of their duties, for all acts, including their
words and writings in the performance of their duties. This immunity
shall not apply in the case of infringements of the rules governing the
movement of motor vehicles committed by an official of the Court or
damage caused by a motor vehicle driven by him or owned by him.
However, the Court is required to take out an insurance policy which, in
case of liability, will cover any damage caused by one of its agents.”
SeeAccord entre l’Organisation pour l’Harmonisation en Afrique du Droit
des Affaires (OHADA) et le Gouvernement de la République de Côte d’Ivoire
relatif au siège de la Cour Commune de Justice et d’Arbitrage (CCJA)
[Agreement between the Organization for the Harmonization of Business
Law in Africa (OHADA) and the Government of the Republic of Ivory Coast
Concerning the Seat of the Common Court of Justice and Arbitration
(CCJA)], Journal Officiel de l’OHADA, 3ème année, N° 9, 15 septembre 1999,
p. 8 [Official Journal of OHADA, 3rd year, N°9, Sept. 15, 1999, p. 8],
http://www.idc-
afrique.org/sites/default/files/journaux_officiels/09%20journal_officiel_
n_09.pdf.

26
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 108) Cour d’appel [CA] [regional court of appeal] Paris, 1 ch. Suppl., Mar. 20 1986, Rev. arb.
1987. 82, obs. B. Mercadal (Fr).
109) Usually, a panel of judges of the court performing administrative duties regarding
specific arbitration cases each panel is appointed to oversee.
110) The whole court (thirteen judges) sitting en banc.
111) CCJA Bylaws on Arbitration.
112) CCJA Arbitration Rules, Art. 1.1.
113) Id., Art. 2.2.
114) Cour de cassation [Cass.] [supreme court for judicial matters] ass. plen., Nov. 6, 1998,
JCP 1998, II, 10198, rapport P. Sargos (Fr.); D. 1999, 1. concl. J.-Fr. Burgelin (Fr.).
115) Tierce v. San Marino, Eur. Ct. H.R., Jul. 25, 2000, D. 2001.339; D. 2001.328 chron. C.
Goyet, Remarques sur l’impartialité du tribunal (Fr).
116) CA Centre, Feb. 6, 2008, N° 52/Civ., supra, Chapter 3, fn. 39.
117) CA Ouest, Jul. 13, 2011, N° 53/Civ., supra, Chapter 14, fn. 117.
118) CA Ouagadougou, ch. com., Apr. 16, 2010, N° 043, (Burk. Faso),
http://www.ohada.com/jurisprudence/ohadata/J-12-182.html.
119) Id.
120) Oryx Bénin v. Société Africaine de Distribution et de Négoce, N° 154/2016, supra,
Chapter 5, fn. 16.
121) Commercial Bank of Cameroon v. Archidiocèse de Yaoundé, N° 242/2018, supra,
Chapter 2, fn. 13.
122) Etat du Bénin v. Société Commune de Participation, N° 104/2015, supra, Chapter 14,
fn. 57.
123) Societe Ivoirienne de raffinage v. Bona Shipholding, N° 029/2007, supra, Chapter 3,
fn. 41.
124) Ekwa Ngalle v. Société Nationale d’Hydrocarbures, N° 102/2015, supra, Chapter 2, fn.
31.
125) Pyramidion v. Agence d’Exécution des Travaux d’Infrastructure du Mali, N° 098/2014,
supra, Chapter 6, fn. 16.
126) Etat du Mali v. Groupe TOMOTA, N° 033/2015, supra, Chapter 6, fn. 17. On the
discretion of an arbitral tribunal for the appointment of an expert, see also Benin
Control v. Etat du Bénin, N° 103/2015, supra, Chapter 6, fn. 18.
127) Pyramidion v. Agence d’Exécution des Travaux d’Infrastructure du Mali, N° 098/2014,
supra, Chapter 6, fn. 16.
128) Etat du Bénin v. Société Commune de Participation, N° 104/2015, supra, Chapter 14,
fn. 57.
129) Compagnie Malienne pour le Développement des Textiles v. Société Inter Africaine
de Distribution, N° 160/2016, supra, Chapter 1, fn. 33.
130) Id.
131) Société Nestle Cameroon v. Groupe Abbassi, N° 081/2019, supra, Chapter 14, fn. 14.
132) See Barthélemy Mercadal, Modèle Universel de Contrat d’Affaires, Editions Francis
Lefebvre, 2019, 176 at 441. (Mercadal, Modèle Universel de Contrat d’Affaires, 2019).
133) Id.
134) Oryx Bénin v. Société Africaine de Distribution et de Négoce, N° 154/2016, supra,
Chapter 5, fn. 16. There are little details in the summary of the facts, but it can be
taken from this ruling that a mere allegation of violation of some national rules is
not sufficient to characterize breach of public policy entailing annulment of an
arbitral award. For a case where breach of international public policy has been
found, see République du Benin v. Société Générale de Surveillance, N° 068/2020,
Decision, [C.C.J.A.], 3e ch., (Feb. 27, 2020), in which the CCJA ruled that res judicata,
which constitutes a fundamental principle of justice, in that it ensures judicial
security, is part of the international public policy under Art. 26 e) of the UAA. As
such, it prevents an arbitrator from ruling again in the same case between the same
parties and having the same object, where a court of law before which no
jurisdictional objection was raised had already ruled. Consequently, the partial
arbitral award which declares the arbitral tribunal competent to rule again on a
request inviting it to “note that the contract concluded on Dec. 5, 2014 [between the
parties] is and remains valid, effectively binds the [parties] and that the [Republic
of Benin] has not complied with its terms,” while the said contract was already
annulled by the state court, constitutes a breach of international public policy and
must be annulled.
135) Supra, Introduction, fn. 13, 14.
136) Planor Afrique v. Atlantique Telecom, N° 03/2011, Decision, CCJA, Ass. plen., (Jan. 31,
2011), http://www.ohada.com/jurisprudence/ohadata/J-12-136.html.
137) Etat du Bénin v. Société Commune de Participation, N° 104/2015, supra, Chapter 14,
fn. 57.
138) Societe Nationale pour la Promotion Agricole v. Societe des Huileries du Benin, N°
045/2008, supra, Chapter 5, fn. 26.
139) Societe Nationale pour la Promotion Agricole v. Societe des Huileries du Benin,
CCJA, N° 04/2011, Decision, CCJA, 1e ch., (Jun. 30, 2011),
http://www.ohada.com/jurisprudence/ohadata/J-12-137.html.
140) Inter partes suggests the adversarial principle has been complied with. See the
glossary, infra.
141) Etat du Mali v. Tomota SA, CCJA, N° 033/2015, supra, Chapter 6, fn. 17.
142) Benin Control v. Etat du Bénin, N° 103/2015, supra, Chapter 6, fn. 18.

27
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 143) Compagnie Malienne pour le Développement des Textiles v. Société Inter Africaine
de Distribution, N° 160/2016, supra, Chapter 1, fn. 33. This is one of the rare cases of
the CCJA that seem confusing in that the CCJA did not follow its own precedents
according to which the UAA and the CCJA Arbitration Rules are two separate set of
rules applying to two different types of arbitration. But in any event, this isolated
ruling must not be construed as having changed the rule and parties will do well in
ensuring that they do not mix the UAA and the CCJA Arbitration Rules in the same
proceedings.
144) Id.
145) Etat du Mali v. Seaquest-Infotel Mali, N° 027/2017, supra, Chapter 12, fn. 39.
146) National Financial Credit Bank v. N’Diaye, N° 111/2017, supra, Chapter 14, fn. 31.
147) Société Nestle Cameroon v. Groupe Abbassi, N° 081/2019, supra, Chapter 14, fn. 14.
148) CA Centre, Apr. 28, 2010, N° 199/Civ., (Cameroon),
http://www.ohada.com/jurisprudence/ohadata/J-12-73.html.
149) Trois N v. Sicim, N° 110/2018, Decision, [C.C.J.A.], 2e ch., (May 17, 2018). [Emphasis
added].
150) Airtel Gabon v. 2JTH-Gabon, N° 203/2018, supra, Chapter 14, fn. 37 [Emphasis added].
See also George Forrest Belgium v. Les Ciments du Sahel, N° 094/2020, supra,
Chapter 14, fn. 6, emphasizing that failure to state the reasons of an arbitral award is
not intended to serve as a ground for reviewing the merits of the award or for
assessing its merits by the court handling the annulment request.
151) See supra, Chapter 12, §12.02[B][3].
152) Centre de Cablages Electroniques de Laval v. Comeca, Cour d’appel [CA] [regional
court of appeal] Paris, 1e ch. C, Nov. 8 2001, Rev. arb. 2001.som.925 (Fr).
153) Fontan Tessaur v. ISS Abilis France, Cour d’appel [CA] [regional court of appeal]
Paris, 1e ch. C, Mar. 25 2004, Rev. arb. 2004.671 Note J. Ortscheidt (Fr). See also Ihs Ci
v. Projex Ci, N° 128/2020, Decision, [C.C.J.A.], Ass. plen., (Apr. 30, 2020), in which the
CCJA held that Under Art. 29.2 of the CCJA Regulation on Arbitration, failure to state
the reasons of an arbitral award, as a ground for the annulment of said award,
sanctions a total lack of reasons and does not confer on the annulment judge the
power to assess the relevance of the reasons stated by the arbitrators. In the case at
hand, since the challenged award contains many reasons in its wording, the alleged
grievance (failure to state the reasons of the award) lacks merits and the petition for
annulment must be dismissed.
154) Cour d’appel [CA] [regional court of appeal] Paris, n° n°13/17699, Dec. 9 2014: GP
2015.1063.som.s note D. Bensaude (Fr).
155) Ekwa Ngalle v. Société Nationale d’Hydrocarbures, N° 102/2015, supra, Chapter 2, fn.
31.
156) Barou Entreprise des Travaux v. Société d’Exploitation des Mines d’Or de Sadiola,
N° 040/2009, Decision, [C.C.J.A.], 1e ch., (Jun. 30, 2009),
http://www.ohada.com/jurisprudence/ohadata/J-10-78.html.
157) Pawelec v. Pernod Ricard, Cour d’appel [CA] [regional court of appeal] Paris, supra,
Chapter 12, fn. 45.

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

28
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 15: Procedure and Consequences of the

Annulment of Awards
Publication This chapter presents the annulment procedure under each set of rules, namely the UAA
Arbitration in Africa under (§15.02) and the CCJA Arbitrations Rules (§15.03), followed by the consequences of the
OHADA Rules annulment (§15.04). In any event, the annulment procedure can take place only where the
parties have not waived it (§15.01).

Organization §15.01 WAIVER OF THE ACTION FOR ANNULMENT

Cour Commune de Justice The challenge of an arbitral award can be admissible only if the parties have not waived
et d’Arbitrage de such recourse. To be effective, the waiver follows strict rules which must be presented for
l’Organisation pour both arbitration systems, even though they share common traits.
l’Harmonisation en Afrique
du Droit des Affaires [A] Waiver under the UAA
Previous case law considered that any clause waiving an action for annulment was
deemed unwritten, (1) while the CCJA held, in Delpech v. Sotaci, (2) that an action for
Bibliographic reference annulment of an arbitral award was possible under the former version of Article 25 of the
UAA. (3) Then, the Court of Appeal of Abidjan held that the waiver of any remedy being a
'Chapter 15: Procedure and mere obligation for each party to do something, its violation does not affect the
Consequences of the admissibility of the action for annulment exercised by one of the parties, but opens the
Annulment of Awards', in right to damages. It follows that the action for annulment is admissible. (4)
Mahutodji Jimmy Vital Kodo
, Arbitration in Africa under
OHADA Rules, (© Kluwer The new Article 25 of the UAA currently in force expressly provides for the possibility of
Law International; Kluwer waiving annulment of an arbitral award. However, it is not a good idea for a party to
Law International 2020) pp. forego in advance their potential right to challenge an arbitral award, since the effects of
171 - 186 such a waiver clause may prove harmful to the weaker party during the negotiations,
which may thus find themselves unable to seek the annulment of the award, should it get
affected by one or more of the limited annulment grounds listed by the OHADA Legislator
under Article 26 of the UAA.
In any event, if the parties knowingly choose to waive in advance their right to seek an
annulment, they must expressly stipulate it since according to the settled case law of the
CCJA relating to the waiver under the CCJA Arbitration Rules (see §15.01[B]) which can be
transposed under the UAA in the issue, the waiver is not presumed and must clearly
result from the stipulation of the parties.

[B] Waiver under the CCJA Rules

Article 29.2, paragraph 1 of the CCJA Regulation on Arbitration states that “The parties
may agree to waive the action for annulment of the arbitral award, provided the award
does not breach international public policy.” It has been held by the CCJA in Republique
de Guinee Equatoriale v. Commercial Bank Guinea Ecuatorial that under Article 29 (2) of the
CCJA Regulation on Arbitration, even where there are grounds for annulling an award, an
application for setting aside the award will be inadmissible if the parties have previously
and clearly waived their right to any recourse against the award. (5)
However, the waiver is not presumed. In the presence of an unwritten arbitration
agreement, the plaintiff is deemed not to have waived the right to challenge the validity
of the award under Article 29.2 (1) of the CCJA Arbitration Rules, since it does not appear
from any exhibit of the file that the parties to the said agreement intended to explicitly
waive their right to challenge the award. (6)
Under well-established precedent of the CCJA, waiver by the parties of any challenge
against an arbitral award must result from the clearly expressed and unequivocal will of
the parties, because the terms “any award rendered by the arbitral tribunal will be final,
enforceable against the parties” are only being only circumlocutions reflecting the res
judicata effect which attaches to the award rendered under the aegis of the CCJA. They
mean that such an award cannot be questioned and is not subject to any other remedy
than that of a challenge of validity [now called request for annulment] cannot be
prevented by the mere reference to the “final” character of the award contained in the
arbitration clause. (7)

Likewise, the mere use of the term “last resort” in an arbitration agreement between the
parties is not sufficient to reflect an express waiver of the right to challenge an award. (8)
The arbitration agreement containing the passage “all disputes arising from this contract
or in connection with it (…) will be finally settled under the Arbitration Rules of the [CCJA]
(…),” does not prohibit the application by either party for setting aside the award if any
express waiver of recourse does not appear from that agreement. The word “final” does

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 not imply the waiver of the action for annulment specially provided by the CCJA
Arbitration Rules, a right which can be waived only by express stipulation in the
arbitration agreement. Since it is not the case here, it is necessary to reject the objection
of inadmissibility raised by the defendant. (9)
Neither the referral to the ordinary courts of a request for provisional measures nor the
service of a certificate of ownership as in the case at hand, can by themselves
presuppose the waiver by their author of an arbitration clause, which can only result from
an unambiguous manifestation of the will of the parties. (10)
However, a party that is not formally a signatory to an agreement providing for
arbitration is entitled to bring an action for annulment of the arbitral award if it infringes
on their rights. (11)

§15.02 ANNULMENT PROCEDURE UNDER THE UAA

The purpose of the petition for annulment (§15.02[A]), followed with inadmissible
remedies against an arbitral award (§15.02[B]), the applicable law (§15.02[C]), jurisdiction
(§15.02[D]), the statute of limitations (§15.02[E]), the review of the decision of the
competent court by the CCJA (§15.02[F]) and the supplementary jurisdiction of the CCJA for
the motion for annulment (§15.02[G]) will be presented.

[A] Purpose of the Petition for Annulment

It is inferred from Article 25 of the UAA that the action for annulment is not aimed at
reviewing the merits of the challenged award (12) and the judges ruling on the action for
annulment of an award cannot replace the arbitral tribunal in its assessment of the
merits. (13) It is, therefore, wrong to blame a court to which a request for annulment of an
arbitral award has been referred for having drawn consequence from the fact that “only
failure to respond to the claims and the absence of reasoning can justify the action for
annulment, in light of the above analysis,” to dismiss this prong of the argument, the
annulment judge having in no way committed the alleged grievance and thus having
satisfied the obligation of formal verification of the answers given to the parties’ claims,
without looking into the relevance of the answers provided by the arbitrators to the
claims of the parties, which in principle is beyond jurisdiction. Thus, the petition for
overturning the decision must be dismissed. (14)

[B] Inadmissible Remedies Against an Arbitral Award

Under Article 25, paragraphs 1 and 2 of the UAA, “The award is not subject to opposition,
appeal or cassation. It may be subject to a motion for annulment, which must be filed
before the competent court in the State Party.” Additionally, paragraph 4 of the same
Article 25 states that “The decision of the competent court in the State Party on the
motion for annulment may only be appealed in cassation before the Common Court of
Justice and Arbitration.” So far, three specific remedies have been found inadmissible
against an arbitral award governed by the UAA, i.e., appeal (§15.02[B][1]), appeal in
cassation (§15.02[B][2]) and a joint appeal against an award and the order ruling on the
motion for annulment (§15.02[B][3]).
[1] Appeal
It follows from Article 25 of the UAA that an appeal cannot be lodged against an arbitral
award, which can only be the subject of an action for annulment, a third-party opposition,
or an application for review. (15)
[2] Appeal in Cassation
An arbitral award under the UAA cannot be challenged by way of an appeal in cassation,
and such an appeal is inadmissible. (16)
[3] Joint Appeal Against the Award and the Order Ruling on the Motion for Annulment
It follows from Article 25 of the UAA that only the decision of the national court ruling on
the action for annulment of an arbitral award subject to appeal in cassation before the
CCJA. The appeal against both the arbitral award, which cannot be appealed, and the
order that ruled on the request for annulment of the said award, is clearly in violation of
Article 25 of the UAA and inadmissible, especially because the sole ground of appeal is
limited to criticizing the arbitral award in lieu of the decision ruling on the request for
the annulment of the said award. (17)

[C] Applicable Law

The only law applicable to the annulment of an arbitral award rendered under the UAA is
the UAA, which determines the general framework of such action. (18)

[D] Jurisdiction
According to Article 25, paragraph 2 of the UAA, the action for annulment of an arbitral
award “must be filed before the competent court in the State Party.” Thus, the competent
court for such annulment action must be determined in each of the seventeen States

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 Parties of the Treaty. Since information pertaining to the competent court in all of those
jurisdictions is not available, the general rule set by the CCJA on the determination of the
competent court will be presented (§15.02[D][1]), followed by examples of countries in
which courts of appeal have jurisdiction (§15.02[D][2]) and finally a special situation
requiring the attention of practitioners (§15.03[D][3]).
[1] General Rule on the Determination of the Competent Court for Annulment
The general rule has been set in Sarci v. Atlantique Telecom, (19) and reiterated in Delpech
v. Sotaci, (20) in which the CCJA held that since the UAA has not specified the competent
judge before whom the action for annulment must be brought, it is necessary, when the
seat of the arbitral tribunal was in a State Party to the Treaty, to refer to the national law
of that country for this determination. (21)
[2] Jurisdiction of the Court of Appeal of the Seat of Arbitration
Legislative developments in many States Parties have established or maintained the
jurisdiction of the Court of Appeal of the seat of the arbitration. In many countries where
it has not been the case, courts have made their own determination, sometimes by
relying upon cases from other countries and legal scholarship. This is the case, for
example, in Benin (§15.02[D][2][i]), Burkina Faso (§15.02[D][2][ii]), Cameroon (§15.02[D][2]
[iii]), Congo (§15.02[D][2][iv]) and Ivory Coast (§15.02[D][2][v]).

[i] Benin
Under Article 1170 of the Code of Civil Procedure of the Republic of Benin, (22) the
petition for the annulment of an award rendered under the UAA must be filed before the
Court of Appeal of the seat of arbitration by way of summons.
[ii] Burkina Faso
Relying upon legal scholarship, the Court of Appeal of Ouagadougou (Burkina Faso) ruled
that in the absence of the designation of the competent judge by national law in Burkina
Faso, it seems appropriate to recognize in the Court of Appeal the jurisdiction in which
the award was rendered [namely the seat of arbitration] the competent court under
Article 25 paragraph 3 [which became 4] of the UAA as second-level jurisdiction for the
decisions rendered by an arbitral tribunal, and whose decisions are subject of an appeal
in cassation. Moreover, States Parties, such as Ivory Coast and Senegal, whose national
law on arbitration organizes such a remedy, have designated the Court of Appeal of the
seat of the award as the competent court. It is, therefore, appropriate to declare the
commercial chamber of the Ouagadougou Court of Appeal competent to hear this appeal.
(23)
[iii] Cameroon
It is wrong to criticize a Court of Appeal for having “ruled as a last resort, in collegiality
and unanimously, as the chamber of civil and commercial appeals,” while, according to
the argument, Article 25 of the UAA prohibits the appeal in arbitration and admits only
the action for annulment, since in the case at hand the Court ruled only on the strict basis
of the grounds presented to it, after having specified that it ruled “on the action for
annulment presented by [one of the parties].” This is the case because the court will have
ruled as an appellate court only if it had reviewed the award on the merits, the details
noted by the appellant being superfluous. (24)
[iv] Congo
In the current state of the Congolese judicial organization, the Court whose decisions are,
in principle, subject to appeal in cassation and which hears litigation of provisional
enforcement, by means of the defense to provisional enforcement, is undoubtedly the
appeal court, to the [exclusion] of the Supreme Court whose decisions, as a judge of
cassation, cannot, in principle, be subject to censorship by a higher cassation court. It
follows, under the combined provisions of Articles 25 paragraph 3 [which became 4] and
28 paragraph 2 of the UAA, that the Court of Appeal in the jurisdiction of which the
arbitral award was rendered is the competent judge for the motion for annulment of such
award as well as litigation of the provisional execution of the award. In the case at hand,
the applicant’s motion for the defense to provisional enforcement is admissible, as the
applicant has previously justified having filed a motion for annulment of the arbitral
award. (25)
[v] Ivory Coast
Courts had retained the jurisdiction of the Court of Appeal (26) on the basis of old laws
which have since been replaced. Article 9 of Ordinance No. 2012-158 of February 9, 2012
determining the intervention of national courts in arbitration proceedings maintained
the jurisdiction of the Court of Appeal by providing that “motion for annulment of an
arbitral award on is brought by way of summons before the Court of Appeal of the place
of the seat of the arbitral tribunal.” A newer legislation enacted in 2017 (27) has created a
special commercial Court of Appeal, which is the competent court, at least for trade-

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 related arbitration proceedings, as highlighted by some of its rulings on the matter. (28)
[3] The Importance of Carefulness for Practitioners Representing Parties Before the CCJA
In the Republic of Mali, there was a national decree of 1994 on Civil Procedure. (29) Article
923 of that decree designated the Court of Appeal as the only court competent to hear
motions for the annulment of arbitral awards. In 1999, a new decree modifying the Civil
Procedure Code was enacted in the country. (30) In 2009, another decree modifying the
Civil Procedure Code of the country was enacted, without listing Article 923 of the 1994
decree among the provisions that were amended or repealed.

By a ruling N° 035 of May 12, 2010, the Court of Appeal of Bamako (Mali) held that “in the
current state of judicial practice and settled case law in Mali, motions for annulment of
arbitral awards are brought before the court of first level where the award was rendered,”
to decline jurisdiction and to refer the parties to avail themselves before the competent
court, thus basing its decision on the settled case law of the Malian courts. Ruling on the
appeal in cassation against that judgment of the Court of Appeal, the CCJA approved, in
Niare v. Total Mali in 2016, the Court of Appeal of Bamako for having declined jurisdiction.
It specifically held that the ruling of the Court of Appeal in no way lacked a legal basis.
Thus, the appellant having failed to prove the alleged survival of Article 923 of the 1994
decree referred to in the plea, the Bamako Court of Appeal did not in any way violate the
articles referred to in the plea which will be rejected. (31) Thus, under applicable case
law in Mali since the Niare v. Total Mali decision in 2016, the Court of First Level and not
the Court of Appeal had jurisdiction to hear motions for annulment of arbitral awards
rendered under the UAA.
However, in 2019, the CCJA reversed the position it took in Niare v. Total Mali. In NCT
Trading v. Gamby Service, the CCJA overturned a ruling of the commercial tribunal of
Bamako (first-level jurisdiction) by which the said commercial tribunal retained its
jurisdiction and ruled on the motion for annulment of an arbitral award rendered under
the UAA. In doing so, the CCJA held that in the Republic of Mali, State Party to the Treaty,
within which the UAA applies, Article 923 of Decree No. 94-226/P-RM of June 28, 1994 on
the old Code of Civil, Commercial and Social Procedure designates the Court of Appeal as
the only court competent to hear motions for the annulment of an arbitral award. It is,
therefore, appropriate for the CCJA to note, sua sponte, that it is in violation of Article 25
of the UAA and 923 of the 1994 Decree mentioned above that the Commercial Court of
Bamako retained its jurisdiction to rule on the action for annulment brought against an
arbitral award rendered under the UAA. The judgment must be quashed with no need to
examine the grounds of the appeal in cassation. (32)
There is, therefore, a conflict of case law on the question, the judgment of 2016 validating
the jurisdiction of the commercial court retained by the Court of Appeal of Bamako and
the 2019 judgment sanctioning a commercial court for having retained its jurisdiction. (33)

Pending a possible legislative evolution on the subject in Mali, one way to resolve the
issue would be to file a request for an advisory opinion before the CCJA the next time a
Malian court hears an application to annul an arbitral award under the UAA. The Court to
which the motion for annulment of the award would have been referred will then have to
stay proceedings, transmit a copy of the file, the two conflicting judgments of the CCJA on
the question and documents establishing the state of national legislation on the subject
to the CCJA which would then examine the case en banc and issue an opinion that would
resolve the issue and unify the case law. Any lawyer in such a case may also suggest, by
reasoned and detailed submissions, to the said court to stay the proceedings and to
request an advisory opinion from the CCJA.

[E] Statute of Limitations

Article 27 paragraph 1 of the UAA states that “The motion for annulment is admissible as
soon as the award is rendered. It ceases to be if it has not been filed within one month
from the notification of the award with exequatur.” Few remarks will be made on the
starting point of the running of the statute of limitations (§15.02[E][2]) as well as the
consequences of noncompliance with it (§15.02[E][1]).
[1] Inadmissibility of a Late Motion for Annulment
An action for annulment exercised outside the time limit after service of the award is
inadmissible. The Court of Appeal which, in order to declare admissible the appeal
exercised on December 26, 2007 against an award served on November 16, held that the
first request for annulment based on a national provision dated November 30, 2006
suspended the time limit for appeal by one month, violated by misinterpretation Article
27 of the UAA and exposed its judgment to cassation. (34) The motion for annulment filed
on July 29, 2010 against an award with exequatur which was served on the applicant on
July 9, 2008 is inadmissible. (35)
[2] Starting Point of the Deadline from the Service of an Award with Exequatur

4
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 The fact that the Community legislator (36) did not stop at the “service of the award” but
specified “the notification of the award with exequatur” implies that if the one-month
statute of limitation under Article 27 must run from the service of the award, it is on the
condition that this service is related to an award with exequatur. It follows that, in the
case at hand, the arbitral award served without exequatur does not comply with the
requirements of Article 27 of the UAA and cannot cause the statute of limitations to run.
Therefore, the motion for annulment filed before the one-month statute of limitations
began to run occurred within the legal time frame and is admissible. (37)

[F] Review of the Decision of the Competent Court by the CCJA

Under Article 25, paragraph 4 of the UAA, “The decision of the competent court in the
State Party on the motion for annulment may only be appealed in cassation before the
Common Court of Justice and Arbitration.” First, an appeal in cassation before the CCJA is
the only recourse against the ruling of the national competent court ruling on a motion
for annulment of an arbitral award governed by the UAA (§15.02[F][1]) [1]. It does not stay
the enforcement of the judgment, which has ruled on the motion for annulment (§15.02[F]
[2]) and must be limited to the review of the judgment itself and not the reasons of the
award (§15.02[F][3]).
[1] Appeal in Cassation
The only recourse against decisions rejecting motions for annulment and defenses against
the provisional enforcement of an award is an appeal in cassation, which must be
brought before the CCJA. Any appeal brought against such a decision before a National
Supreme Court would constitute a dilatory and illegal procedure in that it was not
provided for by any text. (38)
The inadmissibility of the appeal brought against a decision rendered on the action for
the annulment of an award is wrongly raised, on the ground that because of a contractual
stipulation of the parties according to which “jurisdiction is given to an arbitral tribunal
which will have to rule in equity as a last resort …,” any court decision rendered as a last
resort is not subject to appeal and can only be appealed in cassation and that thus, only
the arbitral award and not the judgment of the Court of Appeal, was subject to an appeal
in cassation since it follows from Article 25 of the UAA that the decision of the Court of a
State Party ruling on the motion for annulment of an arbitral award is subject to appeal
in cassation before the CCJA. The objection to admissibility lacks merits, and the appeal
is admissible. (39)
[2] No Stay of Proceedings
An annulled award ipso facto ceases to have any effect, and the annulment judge need
not expressly say so in their decision, which would be redundant. The judgment ruling on
the appeal to set aside an award is enforceable in that the appeal to which it may be
subject under Article 25 paragraph 3 [which became 4] of the UAA, namely the appeal in
cassation before the CCJA, does not stay enforcement of the challenged judgment. (40)
[3] Limitation of the Review to the Reasons of the Judgment and not the Award
In Hotel Eda Oba v. Xoelevator, the CCJA ruled that the petition for review of a judgment
which rejected the motion for annulment of the award at hand, based on the alleged
ground that the challenged judgment does not state the reasons for which the challenge
to the arbitral award itself was dismissed must be rejected, where it is established that
in reality, the petitioner was criticizing the reasons of the arbitral award and not the
reasons of the decision that ruled on the challenge against the arbitral award. (41) This
decision is another reminder that any challenge that would lead a court to review the
merit of an arbitral award will not succeed, as highlighted in Chapter 14 supra (see
§14.04[B][1][ii]).

[G] Supplementary Jurisdiction of the CCJA for the Motion for Annulment
In order to ensure swiftness in the proceedings, the OHADA Legislator has given a
supplementary jurisdiction to the CCJA to handle any motion for annulment if the
national court to which it has been referred fails to rule within three months. Article 27,
paragraph 2 of the UAA states to that effect that:
The competent court rules within three (03) months of its referral. If that court
fails to rule within that time period, it is divested of the case and the action may
be brought before the Common Court of Justice and Arbitration within the next
fifteen (15) days. The latter must rule within a maximum of six months of
referral. In that case, the time limits specified in the Rules of procedure of the
Common Court of Justice and Arbitration are reduced by half. (42)
The framing of the motion for annulment within a time frame is an innovation by the
OHADA Legislator intended to introduce swiftness into the arbitration procedure. Thus,
after three months if the national court to which the motion for annulment has been
referred has not ruled, the matter can be referred to the CCJA. In this case, it is necessary
to determine in what capacity the CCJA will rule under such circumstances: would that be

5
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 a decision equivalent to that of the competent court to which the matter would have
been initially referred and which would not have not ruled within the allotted time and
which, therefore, would be subject to an appeal in cassation before the CCJA? Or would it
be a decision of last resort? The applicable rules do not specify this, but the second
hypothesis seems more appropriate because the CCJA remains a cassation court, the
decision of which is subject to no further appeal (43) , and it will make no sense to make
an exception in this case.
The fact that the CCJA can perform de novo review of cases after cassation, (thus putting
itself exceptionally in the shoes of a trial judge or Court of Appeal, depending on the
circumstances) should not be an excuse to transform it into a trier of fact or a lower court,
at the risk of making the procedures cumbersome and rendering the whole OHADA legal
system counterproductive. Consequently, it should be considered that when it has to rule
to make up for the deficiency of a national court at the end of the three-month period
(regardless of the cause), the CCJA decides as a last resort on the challenge of the award.
As a result, it is possible that in some cases (delaying tactics of a party or possible
difficulties affecting the functioning of the local court), things happen in such a way as to
prevent the competent national courts from ruling within the three-month time limit,
which would automatically make the CCJA competent if it were referred to by a party.
Some parties may be tempted to take advantage of this possibility with the risk, in the
long run, of a “bottleneck of the CCJA” if it were to be called upon from all sides for this
purpose.
This is so because the parties always have an interest in the CCJA deciding directly and
once and for all on an appeal without having to exhaust the appeal before the national
court against the decision of which a possible appeal in cassation would be lodged
before the CCJA. This represents a considerable saving of time and money for the parties.
It would, therefore, be necessary to be able to rely on the swiftness of national courts so
as to avoid indirectly burdening the CCJA and depriving the parties of a double degree of
jurisdiction, even if the latter might have an interest in it.
The last part of Article 27 paragraph 2 of the UAA specifies that the CCJA “must rule within
a maximum of six months of referral,” in which case “the time limits specified in the Rules
of procedure of the Common Court of Justice and Arbitration are reduced by half.” (44) A list
of those time limits likely to be involved in annulment proceedings can be found in
Appendix IV infra.

§15.03 ANNULMENT PROCEDURE UNDER THE CCJA RULES

Four items will be presented under this section, i.e., the exclusive jurisdiction of the CCJA
for the annulment of an arbitral award governed the CCJA Rules (§15.03[A]), the
notification for the motion for annulment to the opposing party (§15.03[B]) and the
statute of limitations (§15.03[C]) and the timeline of the proceedings before the CCJA
(§15.03[D]).

[A] Exclusive Jurisdiction of the CCJA

Article 29.1 of the CCJA Regulation on Arbitration states that “The party filing a motion for
annulment of an award rendered by an arbitral tribunal under this Regulation must refer
to the Court by a motion that the Court notifies the opposing party.” A Court of Appeal [or
any other national court] has no jurisdiction to hear the motion to annul an arbitral award
rendered under the CCJA Rules, only the CCJA being competent in such a case. (45) The
exclusive jurisdiction of the CCJA is so established that it has retained jurisdiction in an
arbitration-related dispute of which no national jurisdiction could no longer hear. (46)

[B] Notification of the Motion to the Opposing Party

The inadmissibility of a motion for annulment of an arbitral award, raised by a defendant
on the ground that they have not been properly served under to Article 29.1 of the CCJA
Regulation on Arbitration must be dismissed, as long as it is established that the motion
has been served to the elected domicile of the defendant, namely, to the attorney of the
defendant in Abidjan. Thus, the defendant is deemed to have received notification of the
motion. (47)

[C] Statute of Limitations

Under Article 29.3 of the CCJA Regulation on Arbitration, “The motion for annulment can
be filed as soon as the award is rendered. It becomes inadmissible if it has not been filed
within two (2) months of notification of the award under Article 25 of this Regulation.” The
wording of that provision suggests that there is no need for a party to the arbitration
proceedings to serve the award to the opposing party before filing a motion for
annulment of the award since, under Article 25 of the Regulation, the award is notified to
the parties by the secretary-general of the CCJA. That notification triggers the running
of the statute of limitations, and any motion for annulment filed after the running of the
statute is inadmissible. (48)

[D] Timeline of the Proceedings Before the CCJA

6
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 Article 29.4 of the CCJA Regulation on Arbitration States that “The Court processes the
case and rules under its Rules of Procedure. In this case, the procedural time limits are
reduced by half. The Court must rule on the motion for annulment within six (6) months of
its referral.”
Once the motion for annulment of an arbitral award is filed before the CCJA, the
proceedings take place like ordinary appeals in cassation, the only difference being that
the Court must rule within six months of referral and all the time limits and statutes of
limitations under the Rules of Procedure of the CCJA are halved. Those time limits can be
seen in Appendix IV, infra.

§15.04 CONSEQUENCES OF THE ANNULMENT OF ARBITRAL AWARDS

[A] Under the UAA
Article 29 of the UAA states that “In the event of the annulment of the arbitral award and
unless the annulment is based on the fact that the tribunal has ruled without an
arbitration agreement or on a void or expired one, it rests upon the most diligent party, if
they so wishes, to initiate new arbitration proceedings in accordance with this Uniform
Act.”
The Court of Appeal of Abidjan (Ivory Coast) held in 2001 that “Article 29 of the UAA states
that, in the event of annulment of a challenged award, it is up to the most diligent party
to initiate, if it wishes, a new arbitration procedure. The Court of Appeal, which has
annulled an arbitral award, cannot review the merit of the award and the parties must
therefore be sent back to better avail themselves.” (49)

[B] Under the CCJA Rules

The consequences of the annulment of an arbitral award governed by the CCJA Rules are
dictated by Article 29.5 of the said Rules, which state that:
If the Court denies recognition and res judicata effect of the award referred to
it, the award is annulled.
The Court reviews the case de novo and rules on the merits if the parties have
requested that.
If the parties have not requested de novo review, the proceedings are
resumed at the request of the most diligent party, starting, if necessary, from
the last step of the arbitration proceedings held valid by the Court.
Over the years, the CCJA has determined the consequences of the annulment of an
arbitral award governed by its Arbitration Rules, which are currently three. First, the
application for exequatur of an arbitral award, which is to be annulled, must be
dismissed. (50)
Second, to prosper, the request for de novo review of a dispute after the annulment of an
award must result from the common will of all parties (51) and clearly expressed by them.
Because of the opposition of a party to the dispute and based on the contract which did
not provide for the review, it must be concluded that the conditions for the application of
[Article 29.5 of the CCJA Regulation on Arbitration] are not met; consequently, the request
for de novo review filed by the other party to the dispute must be rejected. (52)
Finally, where a challenged arbitral award has been annulled for the absence of a valid
arbitration agreement, there is no reason to start new arbitration proceedings under the
aegis of the CCJA again. (53)

References
1) CA Abidjan, Apr. 27, 2001, 2e esp., (Côte d’Ivoire),
http://www.ohada.com/jurisprudence/ohadata/J-02-127.html.
2) Delpech v. Sotaci, N° 010/2003, Decision, supra, Chapter 14, fn. 41.
3) Under Art. 25, para. 2 of the UAA of Mar. 11, 1999, arbitral awards ‘may be the subject
of an appeal for annulment, which must be brought before the competent judge in
the State Party.’
4) CA Abidjan, Jul. 25, 2003, N°1060, (Côte d’Ivoire),
http://www.ohada.com/jurisprudence/ohadata/J-03-292.html.
5) Republique de Guinee Equatoriale v. Commercial Bank Guinea Ecuatorial, N°
012/2011, Decision, CCJA, Ass. plen., (Nov. 29, 2011),
http://www.ohada.com/jurisprudence/ohadata/J-13-142.html.
6) Societe Inter Africaine de Distribution v. Compagnie Malienne pour le
Developpement des Textiles, N° 020/2013, supra, Chapter 14, fn. 28 [Emphasis
added].
7) Etat du Mali v. Groupe TOMOTA, N° 033/2015, supra, Chapter 6, fn. 17.

7
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 8) Etat du Mali v. ABS International Corporate, CCJA, N° 011/2011, supra, Chapter 14, fn.
51; Ekwa Ngalle v. Société Nationale d’Hydrocarbures, N° 102/2015, supra, Chapter 2,
fn. 31.
9) Nestle Sahel v. Societe Commerciale d’Importation Azar et Salame, N° 028/2007,
supra, Chapter 11, fn. 1.
10) Sodima v. Dramera, N° 097/2015, Decision, CCJA, 1e ch., (Jul. 23, 2015),
http://www.ohada.com/jurisprudence/ohadata/J-16-194.html.
11) Planor Afrique v. Atlantique Telecom, N° 03/2011, supra, Chapter 14, fn. 134.
12) Trois N v. Sicim, N° 110/2018, supra, Chapter 14, fn. 147.
13) Prévoyance Assurances S.A. v. Eiffage Sénégal, supra, Chapter 3, fn. 39.
14) Trois N v. Sicim, N° 110/2018, supra, Chapter 14, fn. 147.
15) Wassolo Ltd v. Fourniture Equipement et Divers, Cour d’appel de commerce [CA]
[regional commercial court of appeal] Abidjan, 17 janvier 2019, 1e ch., N°347/2018,
(Ivory Coast). Inaya v. Ciment d’Afrique, Cour d’appel de commerce [CA] [regional
commercial court of appeal] Abidjan, Jun. 20, 2019, 1e ch., N° 410/2019, (Ivory Coast).
16) Emcica Congo Sarl v. Electra, N° 021/2015, Decision, [C.C.J.A.], 3e ch., (Apr. 9, 2015).
17) Technifer GC v. Injelec, N° 096/2018, Decision, [C.C.J.A.], 1e ch., (Apr. 26, 2018).
18) CA Abidjan, Jul. 25, 2003, N° 1060, supra, Chapter 15, fn. 4.
19) Sarci v. Atlantique Telecom, N° 044/2008, supra, Chapter 2, fn. 5.
20) Delpech v. Sotaci, N° 010/2003, supra, Chapter 14, fn. 41.
21) Sarci v. Atlantique Telecom, N° 044/2008, supra, Chapter 2, fn. 5.
22) See Law n ° 2008-07 of Feb. 28, 2011 on the Code of Civil, Commercial, Social,
Administrative and Accounts Procedure in the Republic of Benin:
https://sgg.gouv.bj/doc / loi-2008-07/).
23) CA Ouagadougou, Apr. 16, 2010, ch. com., n° 043 (Burkina Faso), supra, Chapter 14, fn.
118. Quoting professor Paul Gérard Pougoue, the court specifically held that
“according to legal scholarship, ‘By providing that the decision of the competent
judge can only be appealed in cassation before the CCJA, Article 25 paragraph 3
[which became 4] of the UAA seems more favorable to the jurisdiction of the court of
appeal. Decisions made by the judges at first level are usually subject to appeal to
the second level of jurisdiction. The arbitrator constitutes the first level, and the
action for annulment is filed at the second level.’”
24) Wanmo v. Nguessi, N° 151/2017, supra, Chapter 2, fn. 21.
25) CA Pointe-Noire, Oct. 8, 2004, n° 180 (Burkina Faso),
http://www.ohada.com/jurisprudence/ohadata/J-13-72.html.
26) CA Abidjan, Apr. 27, 2001, N° 45, supra, Chapter 11, fn. 2; Delpech v. Sotaci, N°
010/2003, supra, Chapter 14, fn. 41.
27) Decret n° 2017-501 du 2 août 2017 portant création de la cour d’appel de commerce
d’Abidjan et fixant son siège, son ressort territorial et sa composition,
https://www.ilo.org/dyn/natlex/docs/SERIAL/107295/132008/F-2047133431/CIV-
107295.pdf [accessed Apr. 23, 2020 at 16:38].
28) Wassolo Ltd v. Fourniture Equipement et Divers, supra, Chapter 15, fn. 15; Inaya v.
Ciment d’Afrique, supra, Chapter 15, fn. 15.
29) Décret n°94-226/P-RM du 28 juin 1994 portant ancien Code de procédure civile,
commerciale et sociale.
30) Décret n°09-220/P-RM du 11 mai 2009 portant modification du Code de procédure
civile, commerciale et sociale en vigueur au Mali.
31) Niare v. Total Mali, N° 163/2016, Decision, [C.C.J.A.], 3e ch., (Dec. 1, 2016). According to
the CCJA, Decree No 09-220/P-RM of May 11, 2009 amending the Code of Civil,
Commercial and Social Procedure in Mali, does not mention among the provisions
concerned, those of Art. 923 Decree No. 94-226/P-RM of Jun. 28, 1994 of the former
Code of Civil Procedure, provisions of which are also contrary to those of Art. 18 of
Decree No 99-254/P-RM dated Sept. 15, 1999 under the new Code of Civil, Commercial
and Social Procedure according to which “The jurisdiction of the courts on the basis
of the matter is determined by the rules relating to judicial organization and by the
special provisions.”
32) NCT Trading v. Gamby Service, N° 053/2019, Decision, [C.C.J.A.], 1e ch., (Mar. 14, 2019).
33) The two conflicting rulings of the CCJA on the matter are: Niare v. Total Mali, in 2016,
by which it held that the action for annulment of an arbitral award must be brought
before a court of first level, such as the commercial tribunal; and NCT Trading v.
Gamby Service, in 2019, in which the CCJA overturned the decision by which the
commercial tribunal retained jurisdiction.
34) Pme Financement v. Tanko, N° 049/2012, Decision, [C.C.J.A.], 2e ch., (Jun. 7, 2012).
35) Libya Oil Chad SA v. Gamma, N° 034/2017, Decision, [C.C.J.A.], 3e ch., (Mar. 9, 2017),
http://www.ohada.com/jurisprudence/ohadata/J-17-168.html.
36) Community Legislator is an expression court sometimes use to designate the OHADA
Legislator.
37) CA Pointe-Noire, Mar. 4, 2005, (Congo), supra, Chapter 2, fn. 10.
38) Tribunal de commerce [T.com.] [Ordinary commercial court] Pointe-Noire, Jan. 9,
2008, N° 001, http://www.ohada.com/jurisprudence/ohadata/J-13-71.html.
39) Le Bistro Family v. Rosace Marbrée, N° 196/2018, supra, Chapter 2, fn. 11.
40) CA Pointe-Noire, Mar. 4, 2005, (Congo), supra, Chapter 2, fn. 10. [Emphasis added].

8
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 41) Hotel Eda Oba v. Xoelevator, N° 094/2017, Decision, [C.C.J.A.], 2e ch., (Apr. 27, 2017).
See also Agence pour la Sécurité de la Navigation Aérienne en Afrique et à
Madagascar v. Snack Bags, N° 011/2015, Decision, [C.C.J.A.], 2e ch., (Apr. 2, 2015). For a
recent ruling of the CCJA dismissing the petition for review of a judgment which
rejected the motion for annulment of a challenged award, see Vivo Energy Mali v.
Fasogaz, N° 037/2020, Decision, [C.C.J.A.], 1e ch., (Feb. 13, 2020). And for a decision
which dismissed the appeal in cassation against a decision which annulled an
arbitral award, see Société Africaine des Relations Commerciales et Industrielles v.
Atlantique Telecom, N° 177/2020, Decision, [C.C.J.A.], 1e ch., (May 28, 2020).
42) [Emphasis added].
43) For example, that is already the case when the CCJA, after overturning judgments of
courts of appeal ruling on challenges to injunction to pay orders, reviews the merits
of those injunctions to pay orders under Art. 14 of the OHADA Treaty and Arts 1-15 of
the Uniform Act on Debt Collection and Enforcement Measures.
44) [Emphasis added].
45) CA Ouagadougou, Jun. 5, 2009, N° 34, N° 001(Burkina Faso),
http://www.ohada.com/jurisprudence/ohadata/J-12-168.html.
46) See Societe Inter Africaine de Distribution v. Compagnie Malienne pour le
Developpement des Textiles, N° 020/2013, supra, Chapter 14, fn. 28.
47) Société Nestle Cameroon v. Groupe Abbassi, N° 081/2019, supra, Chapter 14, fn. 14. In
Kabamba Mulangi v. DHL Global Forwarding DR Congo, N° 127/2020, supra, Chapter 14,
fn. 50, the CCJA ruled that failure of a petitioner to notify their motion for annulment
of an arbitral award to the opposing party does not incur any penalty. However, that
ruling is no more relevant because under the new version of Art. 29.1 of the CCJA
Regulation on Arbitration currently in force, a motion for annulment of an arbitral
award must be served to the opposing party by the registrar of the CCJA and no more
by the petitioner.
48) Kiendrebeogo v. Banque Internationale du Burkina, N° 031/2009, supra, Chapter 10,
fn. 8, ruling that when the challenged arbitration award was rendered on Jan. 15, 2007
and notified on Jan. 31, 2007 to the counsel of the applicant, the latter had, under Art.
29.3 of the CCJA Regulation on Arbitration, and taking into account the fourteen-day
distance period under the prescriptive Decision 002/99/CCJA, until Apr. 16, 2007, the
first working day after Sunday, Apr. 15, 2007 to file their motion for annulment. The
motion, which was not filed at the Registry of the CCJA until May 7, 2007, is
inadmissible.
49) CA Abidjan, Apr. 27, 2001, N° 45, supra, Chapter 11, fn. 2. However, it follows from Art.
33 of the UAA that the rejection of a petition for annulment reinforces the
enforceability of the challenged arbitral award (Sicim Spa Succursale Cameroun v.
Trois N, N° 021/2020, Decision, [C.C.J.A.], 2e ch., (Jan. 30, 2020)).
50) Etat du Bénin v. Société Commune de Participation, N° 104/2015, supra, Chapter 14,
fn. 57.
51) Société Inter Africaine de Distribution v. Compagnie Malienne pour le
Développement des Textiles, N° 020/2013, supra, Chapter 14, fn. 28.
52) Nestle Sahel v. Societe Commerciale d’Importation Azar et Salame, N° 028/2007,
supra, Chapter 11, fn. 1.
53) Etat du Mali v. CFAO, N° 039/2014, supra, Chapter 1, fn. 13.

© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

9
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 KluwerArbitration

Document information Chapter 16: Third-Party Opposition and Revision of

Arbitral Awards
Publication This chapter presents the other two possible recourses available against arbitral awards
Arbitration in Africa under under OHADA Rules, which are third-party opposition (§16.01) and revision (§16.02).
OHADA Rules
§16.01 THIRD-PARTY OPPOSITION OF ARBITRAL AWARDS
Organization [A] Under the UAA
Cour Commune de Justice Article 27, paragraph 5 states that “The arbitral award may be the subject of third-party
et d’Arbitrage de opposition by any person before the court of the State Party which would have had
l’Organisation pour jurisdiction in the absence of arbitration and when that award prejudices his rights.”
l’Harmonisation en Afrique There is no available record of third-party opposition cases, and it remains to be seen in
du Droit des Affaires the future how things will evolve.

[B] Under the CCJA Rules

Bibliographic reference Third-party opposition to arbitral awards under the CCJA Rules is governed by Article 33
of the CCJA Regulation on Arbitration. It states:
'Chapter 16: Third-Party
Opposition and Revision of Third-party opposition against arbitral awards is brought before the Court. The
Arbitral Awards', in same applies to judgments of the Court, where the Court has ruled on the
Mahutodji Jimmy Vital Kodo merits under Article 29.5, of this Regulation.
, Arbitration in Africa under
OHADA Rules, (© Kluwer Third-party opposition is filed under Article 47 (1) of the Rules of procedure of
Law International; Kluwer the Common Court of Justice and Arbitration.
Law International 2020) pp.
187 - 190
There are no available third-party opposition cases yet, and the reader is referred to
available legal scholarship on the available case law on third-party opposition under
Article 47 of the CCJA Rules of Procedure. (2)

§16.02 REVISION OF ARBITRAL AWARDS

[A] Under the UAA
Article 25, paragraph 6 of the UAA states that an arbitral award:
May also be the subject of a motion for revision before the arbitral tribunal
due to the discovery of a fact likely to have a decisive influence on the
settlement of the dispute and which, before the rendering of the award, was
unknown to both the arbitral tribunal and the party requesting the revision.
Where the arbitral tribunal can no longer be convened, the motion for revision
is brought before the Court in the State Party, which would have had
jurisdiction in the absence of arbitration.
Here too, there is no publicly available case handling motions for revision, and it will
have to be watched in the coming years.

[B] Under the CCJA Rules

The motion for revision (3) of arbitral awards rendered under the CCJA Rules is governed
by Article 32 of the CCJA Regulation on Arbitration, which states:
Upon discovery of a fact likely to exert a decisive influence and which, prior to
the rendering of the award, was unknown to the arbitral tribunal or the party
requesting the revision, a motion for revision may be filed against the
award before the Secretary General. The Secretary General forwards the
motion for revision to the arbitral tribunal.
In the absence of an agreement by the parties on the appointment of a new
arbitral tribunal:
a) where the arbitral tribunal was made up of a sole arbitrator and cannot
be reconvened, the Court appoints a sole arbitrator to rule on the
application for revision;
b) where the arbitral tribunal was made up of three arbitrators and cannot
be reconvened, the Court appoints, after consultation with the parties,
either a new tribunal made up of three arbitrators or a single arbitrator
to rule on the motion for revision;
c) where the arbitral tribunal was made up of three arbitrators and one or

1
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 more of these arbitrators cannot be reconvened, the Court appoints,
after consultation with the parties, arbitrators to complete the arbitral
tribunal which rules on the motion for revision.
There are at least two cases involving the revision of an arbitral award. It has been held
in Etat du Niger v. Société Africard Co Limited that the CCJA can stay the enforcement of an
arbitral award where the opening of the revision proceedings against its judgment on the
motion for annulment of the said award may, as a consequence, call into question the
award itself as related to that judgment by a relationship which is not at arm’s length. (4)
As a rule, unless the provisional enforcement of the award has been ordered by the
arbitral tribunal, the filing of the motion for annulment stays the enforcement of the
arbitral awards until the CCJA has ruled. In the case at hand, since the challenged awards
are not provisionally enforceable and their enforcement may have irreparable
consequences, it is necessary to stay the enforcement as requested. (5)
In Fonds Africain de Garantie et de Coopération Economique v. Banque Sénégalo-Tunisienne,
(6) the CCJA declared the petition for revision of an arbitral award inadmissible on the
ground that the alleged new fact was already brought to the attention of the petitioner
and was not “new fact” justifying the revision sought.

References
1) Article 47 of the CCJA Rules of Procedure states:
1. Any natural person or legal entity may file a motion for third party
objection to a judgment rendered without it being appealed, if this
judgment is prejudicial their rights.
2. The provisions of Articles 23 and 27 of these Rules apply to the motion
for third-party objection. It must in addition:
a) specify the challenged judgment;
b) state how this judgment is prejudicial to the rights of the
opposing third party;
c) state the reasons why the third party was unable to participate
in the main dispute.
The motion must be filed against all the parties to the main litigation.
3. The challenged judgment must be modified insofar as it upheld the
third-party proceedings. The original of the judgment on third-party
objection must be appended to the minutes of the challenged
judgment. Mention of the judgment on the third-party judgment must
be made in the margins of the original of the challenged judgment.
2) See for example, Mahutodji Jimmy Vital Kodo, Code Pratique Francis Lefebvre OHADA.
Traité, Actes Uniformes et Règlements Annotés, 20-21, 195-198, Editions Francis
Lefebvre, 2019 Invalid source specified.
3) The word ‘revision’ has been preferred to ‘review’ which was used in the translated
version of the CCJA Regulation, to avoid any confusion with the ‘review’ of an award or
a judgment. It is commonly used. See Nathalie Voser and Anya George, Revision of
Arbitral Awards, In ‘Post Award Issues,’ ASA Bulletin Special Series N° 38, 43-74,
https://www.swlegal.ch/media/filer_public/32/63/32637dcf-3c36-46a1-b8bf-
98f3cdf21573/09-chapter-3.pd... [accessed on Apr. 27, 2020 at 15:32] (Voser & Anya);
(Fouchard, Gaillard, & Goldman, 1999), supra, Chapter 1, fn. 26, p. 919.
4) Referring to the French expression “lien de dépendance necessaire.” See the glossary,
infra.
5) Etat du Niger v. Société Africard Co Limited, N° 087/2018, supra, Chapter 2, fn. 23.
6) Fonds Africain de Garantie et de Coopération Economique v. Banque Sénégalo-
Tunisienne, N° 068/2013, Decision, [C.C.J.A.], Ass. plen., (Nov. 14, 2013).

2
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.

Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.

If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.

KluwerArbitration

3
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.