The OHADA recently adopted, during the last session of the OHADA Council of Ministers in Conakry, new major texts on Arbitration and Mediation. These texts are (i) the revised Uniform Act on Arbitration (the “Act”), (ii) the Joint Court of Justice and Arbitration revised Rules on Arbitration (the “Rules”) and (iii) the new Uniform Act on Mediation, all of them are dated 23
November 2017 and will enter into force 90 days after their publication in the Official
Journal of OHADA.
These new texts are the outcome of a collaboration with the international firm Jones Day following an international tendering process conducted in March 2016. The firm acted as an adviser in the reform project, led by the Michael Bühler, partner in charge of the project and head of the Firm’s Paris Office Global Disputes Practice, and submitted an evaluation report containing 30 proposals for the amendment of the acts.
In the context of the reinforcement of arbitration efficiency and development of arbitration proceedings, the Act and the Rules now specifically include investment arbitration in their scope of application (Art. 3 of the Act and Art. 2.1§2 of the Rules).
The Act also implements a strict rule regarding the composition of the arbitral tribunal in absence of agreement between the parties on the number of arbitrators, since the arbitral tribunal is henceforth automatically composed of a sole arbitrator in such cases (Art. 5§2). It now introduces an explicit disclosure obligation for arbitrators during the proceedings (Art.7§5) and a duty of loyalty and celerity for parties (Art. 14§4).
The Act and the Rules have also a new possibility for the arbitral tribunal to appoint experts, to listen to them during hearings (Art. 14§12 of the Act) and to pronounce interim or provisional measures, at the request of a party (Art. 14§13 of the Act and Art. 10.1 of the Rules). Time limits, which were almost inexistent, are also set out in relation to annulment appeals, enforcement and challenge requests.
Furthermore, the Act creates a termination ordinance, by which the arbitral procedure ends (alongside with the final award) and which is pronounced in case the time limit of the initial or extended arbitration has come to an end or in case of a settlement (Art.16§2 et 3). In addition, the texts enshrine the award by consent (Art. 19 of the Act and Art. 20 of the Rules) as well as the possibility for the parties to waive their right to request the annulment of the award, subject to its compliance with international public policy (Art. 25§3 of the Act and Art. 29.2 of the Rules).
Finally, the Rules introduces the procedure of compulsory intervention for persons bound by the arbitration agreement but stranger to the arbitral proceedings (Art. 8.1) and approves from now on multi-party (Art. 8.3) and multi-contract (Art. 8.4) arbitration procedures.