The Uniform Act on Arbitration as a Simplified Debt Recovery Procedure within the OHADA Zone: A Critical Appraisal
Keywords:
Uniform Act, Arbitration, simplified debt recovery procedure, OHADAAbstract
The paper highlights the instances of the simplified recovery procedure of debts of money, goods and services that is applicable in Cameroon in the light of national enactments after independence, community laws of regional and sub regional economic and political communities. It seeks to demonstrate how the uniform act on arbitration can be used as a simplified procedure for the recovery of contractual debts while highlighting the innovations and advantages of the uniform acts under study.
References
1. The heads of Courts of Appeal meeting in 2003 Supra noted that Judicial delays were endemic in the various courts and called on the heads of the Courts of Appeal and heads of the First Instance Courts to double their efforts in the control, training, coordination, animation of the services and personnel placed under their various authorities.
2. The AEC founded through the Abuja Treaty, signed in 1991 and entered into force in 1994 is provided for its creation in six stages to: • (to be completed in 1999) Creation of regional blocs in regions where such do not yet exist. • (to be completed in 2007) Strengthening of intra -REC integration and inter -REC harmonization • (to be completed in 2017) Establishing of a free trade area and customs union in each regional bloc • (to be completed in 2019) Establishing of a continent -wide customs union (and thus also a free trade area) • (to be completed in 2023) Establishing of a continent-wide African Common Market (ACM) • (to be completed in 2028) Establishing of a continent -wide economic and monetary union (and thus also a currency union) and Parliament.
3. Adopted in Lusaka, Zambia in 2001.
4. It is along the above reasoning that the UDEAC nations faced with economic and political impasse agreed to form a wider economic community of central African states CEEAC/ ECCAS which was created in 1981 and came into operation in 1983 to which Cameroon adhered. Later Cameroon and other countries formed the sub regional community within ECCAS of CEMAC (The Central African Economic and Monetary Community).
5. Economic Community of Central African States.
6. The Organization for the Harmonization of Business Law in Africa OHADA was created by a Treaty signed in Port Louis Mauritius on 17 October 1993. Among other things, OHADA provides for common Corporate Law and Arbitration procedures in the 16 -member signatory states (Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Côte d’Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Niger, Senegal, and Togo): • Its objectives as laid down in article 1 of the treaty OHADA is to: • “The objective of the present Treaty is the harmonization of business law in the contracting states by the elaboration and adoption of simple modern common rules adapted to their economies, by setting up appropriate judicial procedures and by encouraging arbitration for the settlement of contractual disputes.” • As a follow up to secure investment and assure a speedy resolution of commercial disputes Cameroon became a member of the International Center for the Settlement of Investment Disputes (ICSID, also known as the Washington Convention), and is a signatory to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention). • Cameroon is a signatory to the 1985 Seoul Convention that established the Multilateral Investment Guarantee Agency (MIGA), aimed at safeguarding non-commercial risks. • Cameroon is also a signatory to the Lome Convention (as revised in Mauritius in 1995), which created an arbitration mechanism to settle disputes between African, Caribbean, and Pacific states (ACP) and contractors, suppliers, and service providers financed by the European Development Fund (EDF). • Cameroon in pursuing this goal to make arbitration process a cornerstone for the settlement of commercial disputes; allowed a group of companies formed in May 1997 (GICAM), Cameroon’s Council of Business Managers and Professional Associations, an association of 207 companies and 15 professional associations representing 70 percent of all formal sector business activity in the country, created their own arbitration center to handle business disputes. • The OHADA Treaty was duly ratified in Cameroon by Decree No 96/ 177 of 5 September 1996 pursuant to Law No 94/04 of 4 August 1994 and thus OHADA Acts are Supranational and are ranked high in our hierarchy of judicial norms in Cameroon.
7. Article 2 of the Uniform Act on the Simplified Recovery of Debts and Measures of Execution
8. As per Article 9 of the OHADA Treaty the Act came into force 90 days after its adoption.
9. Arbitration can be Ad Hoc, institutional before an arbitration house or before the CCJA as per Articles 21 to 26 of the OHADA Treaty under Heading 4 of the Treaty as read with The Arbitration Regulation of the CCJA through a decision of the CCJA No 004/99/CCJA of 3 February 1999 fixing cost in Arbitration matters and approved by the decision No 004/99/CM of 12th March 1999 of the OHADA Council of Ministers.
10. See generally, Tchakoua J.M., (2009), Le system d’arbitrage de la Cour Commune de Justice et d’arbitrage en questions Juridis Périodique N°79.
11. See Article 15 on the principle of ‘amiable compositeur’.
12. The law of the jurisdiction of the action in question.
13. This refers to jurisdiction of the court to hear the subject matter of the dispute.
14. Mistelis LA, et al. (2009) Arbitrability: International & Comparative Perspectives, Kluwer Law International, P.156.
15. Physical or moral person of private or public law in civil law.
16. Kenfack, G -D, L'exécution forcée contre les personnes morales de droit public dans l'espace OHADA, in Revue Camerounaise de l'Arbitrage n° 18-Juillet-Août-Septembre 2002, P. 3.
17. Article 6 of the Uniform on Arbitration.
18. Arbitration clause.
19. Submission agreement.
20. See Article 7 of the UNCITRAL Model Law
21. See also Section 7 of the English Arbitration Act 1996
22. See also Article V para. 1 (d) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
23. See in this connection , Fouchard P. (2004). Le syetem d’arbitrage OHADA: Le Demarage» in Petites affiches N° 205–13.
24. The arbitration award of Wednesday 17th Day of April 2002 that held at Sheraton Heathrow Hotel, London Airport and decided a matter between: African Petroleum Consultants –APC- (Seller) vs. Société Nationale de Raffinage -SONARA (Buyer) with Dr Fru John Nsoh -Sole Arbitrator presiding and awarded the plaintiff over 2,724,800 USD, in default of the appearance of the defendants SONARA who failed to appear after due service to do so in application of the Arbitration Act of England 1996, laws of England, and the English Law of Contracts respectively pursuant to Article 17 of the contract of the parties of 20/10/95. The arbitrator stated that the default of appearance of SONARA led the tribunal to conduct proceedings by applying Section 41 (4) of the Arbitration Act of England 1996; Source: http://www.lexinter.net/JURAFRIQE/loi applicable a la validite de la convention d’arbitrage.htm. Last visited on the 25 of March 2011.
25. Order 40 Supreme Court (Civil Procedure) Rules Cap 211 and Section 50, 76 and 77 of the Magistrate Court Civil Procedure Ordinance 1948/Section 76 –77 of the Southern Cameroons’ Magistrate Court Law 1955 respectively
26. Article 11 of
27. Kompetenz-Kompetenz principle
28. The kompetenz-kompetenz principle was established by case law and later codified in France under Articles 1466 and 1458 of the Code of Civil Procedure.
29. See Cornu (G.) & Foyer (J.), Procedure Civile, 1988, P. 138.
30. Article 12 of
31. Article 13 Supra.
32. Article 13 on
33. See Judicial Organization Ordinance 2006 supra section 15.
34. Article 14 of
35. Article 15 Supra.
36. Article 28 Supra.
37. Article 18 of
38. Ibid, Article 15, See also, Tchakoua J.M., (2002), Le statut de la sentence arbitrale d’accord parties: Les limites d’un dėguisement bien utile, op. cit., P.8.
39. Ibid, Article 19.
40. Ibid, Article 21.
41. Ibid, Article 22.
42. Ibid, Article 23.
43. Ibid, Article 25 & 26.
44. Ibid, Article 25.
45. Ibid, Article 22
46. Article 26–27 0f the UA on Arbitration
47. Article 28 of the Uniform Act on Arbitraion.
48. Ibid, Article 25.
49. Ibid, Article 31.
50. High Court of Fako in Suit N° HCF/91/M/2001 –2002: between: African Petroleum Consultants (APC) vs. Société Nationale de Raffinage, 15 May 2002: Source: http://www.lexinter.net/ JURAFRIQUE/ Last visited on the 12/11/2010.
51. See Section 15 of Law No.2006/015 of 29 December 2006 on Judicial Organization.
52. See also generally, Anoukaha F., (2004), La délimitation de la Compétence entre la Cour de Justice et d’ arbitrage OHADA et les Cours Supremes nationales en matiere de Recouvrement des crėances op.cit.,
53. Article 16 UA.
54. Article 15.5 UA.
55. Article 5 of Law No. 2007/001 of 19 April 2007 supra.
56. Ibid note 59.
57. See Article 3 of Law No. 2007/001 of 19 April 2007 Ibid.
58. Acte Additionnel N° 04/00/CEMAC -041-Cce-Cj-02 Portant Règles De Procédure Devant La Chambre Judiciaire.
59. http://www.cjcemac.org/les%20publications%20cjcemac.htm.
60. Awoumou, C.D., (2008) ECCAS or CEMAC, Which Regional Economic Community for Central Africa? http://www.iss.co.za/pgcontent.php?UID=2495, Last visited on November 25, 2008.
61. Supra, note 79.
