The Complexities of Jurisdiction and the Effective Recognition of Arbitral Awards in Cameroon
Keywords:
jurisdiction, individuals, Unfortunately, Consequently, judgmentsAbstract
Nowadays, it is very common to find individuals from different parts of the globe doing business. Such business dealings may result in disputes between the parties at the international level. Any aggrieved party may sue in court or refer the matter to arbitration and obtain either a judgment or an award depending on the case. Unfortunately, by virtue of the principle of territoriality of laws, judgments delivered outside the territory of the country generally have no effect or force in that country, unlike judgments of national courts which are entitled to direct enforcement. Consequently, when a party obtains a foreign judgment or award, it may still be necessary for that party to take certain measures to enforce the judgment in the absence of voluntary compliance by the debtor or where the debtor does not have sufficient assets or funds in the territory from where the judgment emanates. In such a situation, the decision must be recognized by a court of the state within which enforcement is sought. The same principle is applicable to arbitral awards made in the territory within which enforcement is sought since they emanate from private justice.
References
Exequatur as used in this study is the procedure or mechanism whereby a local court can order compliance by a party against whom a foreign judgment or arbitral award has been obtained. But in PIL. This is a written official recognition and authorization of a consular officer issued by the government to which he is accredited.
Foreign judgments are said to be recognized when local courts conclude that issues have become res judicata between the parties. On the other hand, enforcement is the procedure whereby a local court used the coercive power to order the performance of the relief granted by a foreign court or arbitral tribunal.
This is a result of the fact that duly ratified treaties and international conventions shall , following their publication, override national law, provided the other party implements the said treaty or agreement as laid down in Article 45 of the Constitution.
Lays down the general principle whereby a judgment can be executed if it carries an executory clause.
Exequatur of foreign judgments and acts.
The exequatur of arbitral awards and the procedure before the competent court.
Section 3(1) of the Foreign Judgment Reciprocal Enforcement Act 1960.
We can cite amongst other treaties which can affect the enforcement of judgment in Cameroon the following; Treaty on Organization the Harmonization of Business Law in Africa with its Uniform Acts; the Convention on the Recognition and Enforcement of Foreign Arbitral Awards,1 the UNCITRAL Model Law on International Commercial Arbitration, 21st July 1985; General Convention Relating to Judicial Co-operation between OCAM countries, 112 Dec 1961,1agreement relating to judicial co-operation between CEMAC states, adopted on 28th Jan 2004. With respect to bilateral conventions, we can cite; the agreement relating to judicial cooperation between the federal republic of Cameroon and the French republic of Mali, 21 February 1974, ratified by decree No. 74/663 of 1st July 1974; agreement relating to judicial co-operation between the government of the republic of Cameroon and the executive council of the republic of Zaire, 11th of March 1977, ratified by decree No. 77/192 of 23 June 1977. Protocol on judicial co-operation of 27 March 1972between the Federal republic of Cameroon and the federal republic of Nigeria, ratified by decree No. 77/2216 of 13 June 1977.
See supra.
It could either be through a multilateral or a bilateral treaty. Constitutive Act of the African Union- July 11, 2000
Article 30(3) When all the parties to an earlier treaty are all parties to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
The judicial organization ordinance No. 72/4 of 26th August 1972 relating to the judicial organization as amended by law No. 2006/015 of 29th Dec 2006 ON Judicial Organizations that text, and it regulates supreme court, courts of Appeal, lower courts of administrative litigation, lower audit courts, , military courts, high courts, courts of first instance, and customary courts. The customary courts form part of the judicial organization by virtue of law No79/4 of 29th June 1979 which attached the customary court to the admiration of justice. Before then, the customary court was regulated by the customary court ordinance of the laws of the federation of Nigeria 1948.
The Foreign Judgment Reciprocal Act 1960.
Raess L. Court Assistance in the Taking of Evidence in International Arbitration [Internet]. Library Union Catalog of Bavaria, Berlin and Brandenburg (B3Kat Repository). University of Illinois Urbana-Champaign; 2020 [cited 2024 Apr 5]. Available from: https://library.oapen.org/handle/20.500.12657/42651
The convention for the settlement of disputes between states and nationals of other states, adopted in Washington on March 1965. This convention sates that a party seeking recognition or enforcement in the territory of a contracting state shall furnish to a competent court or authority which such stae shall have designated for this purpose. A copy of the award certified by the secretary general, the New York Convention. 1958.
OHADA – Organisation pour l’harmonisation en Afrique du droit des affaires [Internet]. Ohada.org. 2024 [cited 2024 Apr 5]. Available from: https://www.ohada.org/en/
Law No. 75/18 of 18 Dec 1975 designating the competent authority by virtue of article 54 OF THE Convention settlement of investment disputes.
Law No. 2003/009 of 10th July 2003, designating the competent court in the UA on Arbitration.
See Article 30(3).
Article 30 and 31 of the Arbitration Rules of the Court, adopted on the 11th of March.
Article 30(1).
Asuagbp Lucy A. in her write up “exequatur under Cameroonian law”.
Decree No. 2002/009 of 3rd Dec 2002.
Supra 16n.
Article 1.
Law No 2003/009 of 10th July 2003.
Article 4(2).
Article 1 and 4 respectively.
The agreement relating to judicial cooperation between Cameroon and French republic of Mali, the New York convention.
Article 34 UA on Arbitration. www.ohada.org.
This is because law No. 2003/009 of 10th July 2003 will apply.
The judgment enforcement act 1960 , the Tananarive convention, 1961, and the Cameroon :Mali convention of 1964, the Foreign Judgment Reciprocal Act that repealed the reciprocal ordinance of the laws of the federation of Nigeria 1948which never featured in the revised laws of the federation of Nigeria 1958. It has been held that this ordinance never entered into force.
The Foreign Judgment Reciprocal Act 1960.
Murmansk State Steamship line v Kano Oil Mitters (1974) ALL NLR.
Article 286.
Supra 16n.
Supra 24n.
See who is the competent authority in foregone subhead.
Foreign Judgment Reciprocal Act section 4.
Law No 2003/009 of 10th July 2003 designating the competent court in the UA on Arbitration and decree No 2002/009 of 3rd Dec 2002 designating the Supreme Court as the competent Court in matters of exequatur of awards emanating from the CCJA.
Decree No 2002/009 of 3rd Dec 2002.
Law No 2003/009 of 10th July 2003.
Law No 2006/015 of 29th Dec 2006 on judicial organizations.
Ordinance No 72/4of 26th August 1972 relating to the judicial organization as amended.
The Arbitration Rules of the CCJA.
The convention for the settlement of disputes between states and nationals of other states, adopted in Washington. 1965 Mar.
The Uniform Act on Arbitration.
