ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA “OHADA”
THE OHADA TREATY – UNIFORM ACTS
The Organization for the Harmonization of Business Law in Africa (OHADA) was established by the Treaty on the Harmonization of Business Law in Africa (OHADA) signed on October 17, 1993 in Port – Louis (Mauritius Ireland) and revised in Quebec (Canada) on October 17, 2008. The execution of the tasks laid down in the Treaty shall be ensured by the organization known as the Organization for the Harmonization of Business Law in Africa widely known by its French acronym as “OHADA”. The object of the present Treaty is to harmonized business law in the States Parties by the elaboration and adoption of simple modern common rules adapted to their economies, by setting up appropriate judicial procedures, and promoting arbitration as a means of settling contractual disputes. To harmonize business Law in Africa in order to guarantee legal and judicial security for investors and companies domiciled in its Member states. OHADA shall comprise the Conference of Heads of State and Government, the Council of Ministers, the Common Court of Justice and Arbitration and the Permanent Secretariat. The seat of OHADA shall be in Yaoundé in the Republic of Cameroon. It may be transferred to another place by decision of the Conference of Heads of State and Government.
For the purpose of the Treaty, business law shall include all regulations relating to company law, the definition and classification of traders, recovery procedures measures of enforcement, liquidation land administration proceedings and arbitration, labour law, accounting law, carriage and sales of goods, and any such other matters that the Council of Ministers shall unanimously decide, to include in accordance with the object of the Treaty. Rules for the implementation of the present treaty and decisions taken shall be enacted, where necessary, by an absolute majority of the Council of Ministers. To date, seventeen (17) States are members of the Organization for the Harmonization of Business Law in Africa: The Republic of Benin, The Republic of Burkina Faso, The Republic of Cameroon, The Central African Republic, The Republic of Congo, The Republic of Cote d’Ivoire, The Republic of Equatorial Guinea, The Republic of Gabon, The Republic of Guinea, The Republic of Guinea-Bissau, The Republic of Mali, The Democratic Republic of Congo (RDC), The Republic of Niger, The Republic of Senegal, The Republic of Tchad, The Republic of Togo, The Union of Comoros
Indeed, it is undeniable that legal balkanization and judicial insecurity were the key impediments to the economic development of the continent. Harmonizing economic laws and improving the functioning of judicial systems in Member States were therefore necessary to restore investor confidence, facilitate trade between countries and develop a vibrant private sector. Economic globalization requires the harmonization of laws and legal practices. Regarding developing countries like ours, this is a priority in order to create a favorable climate for legal and judicial security, a condition sine qua non to attract an inflow of foreign investment. This task is even more important considering that investment is in itself a risk, even if it is a calculated risk, it would therefore be much difficult to attract investors if they have to deal with an additional risk of legal norms that are changing, fluctuating and uncertain. Twenty-two years after the creation of OHADA, the result is a huge work of legal unification in its Member States. OHADA is therefore an important tool for the development of business law, the creation of an integrated legal space conducive for a viable and lively economic space. OHADA can be a role model in Africa and beyond since the Caribbean countries have already implemented a similar project
- THE UNIFORM ACT ON ARBITRATION LAW
Date and place of adoption: November 23, 2017 in Conakry (Guinea)
Date of publication in the Official Journal of OHADA: December 15, 2017
Date of entry into force: March 15, 2018
Adopted on 23 November 2017 to replace the initial text of 11 March 1999, the new Uniform Act on Arbitration Law (UAA) constitutes the ordinary law of arbitration for all OHADA Member States. It lays down the principles of the law of arbitration, regulates the different phases of the procedure, lays down the conditions for the recognition and enforcement of arbitral awards, and organizes the remedies available against awards, namely appeal to set aside, appeal to revise the award or third-party opposition.
The new Uniform Act seeks to enhance transparency, promptness and efficiency of arbitral proceedings in OHADA Member States. It should be highlighted that within the OHADA system, the arbitration under the Uniform Act coexists with the specific institutional arbitration administered by the CCJA governed by the new Arbitration Rules of 23 November 2017.
Furthermore, the OHADA legal arsenal for alternative dispute resolution has been reinforced with the adoption of a Uniform Act on Mediation
- THE UNIFORM ACT ON GENERAL COMMERCIAL LAW
Date and place of adoption: December 15, 2010 in Lomé (Togo)
Date of publication in the OHADA Official Gazette: February 15, 2011
Entry into force: May 15, 2011
The Council of Ministers of the Organization for the Harmonization in Africa of Business Law (OHADA); – Having regard to the Treaty on the Harmonization in Africa of Business Law, signed in Port Louis on October 17, 1993, as revised in Quebec on October 17, 2008, particularly in articles 2, 5 and 10 and 12; – Having regard to the report of the Office of the Permanent Secretary and the comments of States Parties; – Having regard to Notice No. 001/2010 dated June 30, 2010 of the Common Court of Justice and Arbitration; After deliberations, States Parties present and voting unanimously adopt the Uniform Act worded as follows “The Uniform Act relating to General Commercial Law”.
- THE UNIFORM ACT ON COOPERATIVE SOCIETIES
Date and place of adoption: 15 December 2010 in Lomé (Togo)
Date of publication in the OHADA Official Gazette: February 15, 2011
Entry into force: May 15, 2011
The Council of Ministers of the Organization for the Harmonization of Business Law in Africa (OHADA), – Considering the Treaty on the Harmonization of Business Law in Africa signed in Port Louis on October 17, 1993, as revised in Quebec on October 17, 2008, specifically, Articles 2, 5 and 10; – Having regard to the report of the Permanent Secretariat and the comments of States Parties; – Having regard to Opinion N° 02/2009/AU dated December 8, 2009 of the Common Court of Justice and Arbitration; – After deliberations, has adopted this Uniform Act by unanimous votes of the representatives of States Parties present and voting. Its scope is basically to ensure that any cooperative, union or federation of cooperatives, whose registered office is located in the territory of one of the States Parties to the Treaty on the Harmonization of Business Law in Africa, hereinafter referred to as “States Parties”, shall be governed by the provisions of this Uniform Act. Any confederation of cooperatives which opts for a cooperative form shall also be governed by the provisions of this Uniform Act. Notwithstanding the provisions of Articles1 and 6 of the Uniform Act on Commercial Companies and Economic Interest Grouping, cooperatives, which engage in commercial activities, shall be governed by the provisions of this Uniform Act.
- THE UNIFORM ACT ON BANKRUPTCY PROCEEDINGS
Date and place of adoption: September 10, 2015 in Grand-Bassam (Côte d’Ivoire)
Date of publication in the OHADA Official Gazette: September 25, 2015
Entry into force: December 24, 2015
The Council of Ministers of the Organization for the Harmonization of Business Law in Africa (OHADA), Having regard to the Treaty on the Harmonization of Business Law in Africa, signed in Port Louis on 17 October 1993, and revised in Quebec on 17 October 2008, especially its articles 2, from 5 to 10, and 12, Having regard to the report of the Permanent Secretary and comments by States Parties, Having regard to Opinion N° 02/2012 dated 9 November 2012 of the Common Court of Justice and Arbitration, After deliberations, States Parties present and voting unanimously adopt the Uniform act for the following purposes : – To organize pre-insolvency procedures of conciliation, preventive settlement and rehabilitative proceedings of reorganization and assets liquidation so as to preserve the economic activities and employment of debtor companies, quickly rehabilitate healthy companies and liquidate distressed ones in such a way that the debtors’ assets will be maximized for the purpose of increasing receivables to be recovered by creditors and establish a specific order of payment to secured or unsecured collateral securities; – To define rules applicable to judicial administrators; – To set proprietary and professional sanctions as well as criminal proceedings related to the default of the debtor, applicable to the debtor company top executives and individuals involved in the proceedings management
- THE UNIFORM ACT ON SECURITIES
Date and place of adoption: December 15, 2010 in Lomé (Togo)
Date of publication in the OHADA Official Gazette: February 15, 2011
Entry into force: May 15, 2011
The Uniform Act organizing securities may be understood as an assignment of assets to a creditor in order to secure the performance of an obligation or a set of obligations. There are essentially three types of securities: Personal security, which includes the surety, the guarantee and the autonomous counter-guarantee; Securities over movable properties including the right of retention, property withheld or transferred as collateral, pledge and liens; Mortgages, which are securities over immovable properties. The UAS of 15 December 2010 repeals and replaces the original Uniform Act of April 17, 1997 organizing securities. It substantially modernizes the legal framework for credit guarantees: the range of collaterals that may be used is widened, the credit information system is modernized and the new UA establishes the profession of security agent, in charge of managing securities for others starting from the creation of securities to their foreclosure. The new law also simplifies the procedures for creating securities while improving efficiency, especially with the provision of alternative mechanisms for enforcing real securities. The reform of securities law reflects the will of OHADA Member States to strengthen the confidence of economic actors.
- THE UNIFORM ACT ON COMMERCIAL COMPANIES AND ECONOMIC INTEREST GROUP
Date and place of adoption: January 30, 2014 in Ouagadougou (Burkina Faso)
Date of publication in the OHADA Official Gazette : February 4, 2014
Entry into force: May 5, 2014
The Council of Ministers of the Organization for the Harmonization of Business Law in Africa (OHADA), Considering the Treaty on the harmonization of business law in Africa, signed in Port Louis on 17 October 1993, and revised in Quebec on 17 October 2008, including its articles 2, 5 to 10, and 12; Considering the report of the Permanent Secretariat and comments by States Parties; Considering opinion N° 02/2012/AU dated 9 November2012 of the Common Court of Justice and Arbitration; After deliberations, States Parties present and voting unanimously adopt the uniform Act worded as follows
- THE UNIFORM ACT ON SIMPLIFIED RECOVERY PROCEDURES AND MEASURES OF EXECUTION
Date and place of adoption: April 10, 1998 in Libreville (Gabon)
Date of publication in the OHADA Official Gazette: June 1st, 1998
Entry into force: August 31, 1998
The Uniform Act organizing simplified recovery procedures and measures of execution (UASRPME) organizes two simple legal procedures, which a creditor may implement to compel its debtor to honor its commitment: the injunction to pay and the injunction to deliver or return a property. In the area of execution measures, the UA organizes the rules on forceful execution and regulates the various constraint measures: provisional seizure (of tangible assets, debts, shareholders rights and movable properties) and enforceable seizures (seizure and sale, garnishee, attachment of earnings, attachment of immovable property). The Council of Ministers of OHADA authorized the Permanent Secretary to assess the implementation of the UASRPME, with a view to further improve the legal framework on debt recovery and forceful execution.
- THE UNIFORM ACT ON CONTRACTS FOR THE CARRIAGE OF GOODS BY ROAD
Date and place of adoption: March 22, 2003 in Yaounde
Date of publication in the OHADA Official Gazette: July 31, 2003
Entry into force: January 1st, 2004
The UACCGR applies to all road transportation contracts where the place of collection of goods and the place of delivery, as specified in the contract, are situated either within the territory of an OHADA Member State or in the territory of two different States of which at least one is a member of OHADA, excluding the transportation of dangerous goods, Funeral transportation, moving transportation, or any other transportation under international postal conventions. The Uniform Act applies regardless of the domicile and nationality of the parties to the contract of carriage. It regulates the conclusion, performance, liability and litigation arising from transportation..
- THE UNIFORM ACT ON ORGNAIZATION AND HARMONIZATION OF BUSINESS ACCOUNTING
Date and place of adoption: March 24, 2000 in Yaounde (Cameroon)
Date of publication in the OHADA Official Gazette: Official Gazette N°10
Entry into force: January 1st, 2001 for personal accounts of companies, and January 1st, 2002 for consolidated and combined financial statements.
The Uniform Act on the organization and harmonization of business accounting, which is annexed the OHADA accounting system, establishes accounting standards, the accounting plan, bookkeeping rules, presentation of financial statement and financial reporting. It applies to personal accounts of companies, individuals and legal entities, as well as to consolidated and combined financial statements. It also contains criminal provisions. The updating process of the UAOHBA and the OHADA accounting system is drawing to the end.
- THE UNIFORM ACT ON ARBITRATION
Date and place of adoption: November 23, 2017 in Conakry (Guinea)
Date of publication in the Official Journal of OHADA: December 15, 2017
Date of entry into force: March 15, 2018 Adopted on 23 November 2017 to replace the initial text of 11 March 1999,
the new Uniform Act on Arbitration Law (UAA) constitutes the ordinary law of arbitration for all OHADA Member States. It lays down the principles of the law of arbitration, regulates the different phases of the procedure, lays down the conditions for the recognition and enforcement of arbitral awards, and organizes the remedies available against awards, namely appeal to set aside, appeal to revise the award or third-party opposition. The new Uniform Act seeks to enhance transparency, promptness and efficiency of arbitral proceedings in OHADA Member States. It should be highlighted that within the OHADA system, the arbitration under the Uniform Act coexists with the specific institutional arbitration administered by the CCJA governed by the new Arbitration Rules of 23 November 2017. Furthermore, the OHADA legal arsenal for alternative dispute resolution has been reinforced with the adoption of a Uniform Act on Mediation.
- THE UNIFORM ACT ON MEDIATION
Date and place of adoption: November 23, 2017 in Conakry (Guinea)
Date of publication in the Official Journal of OHADA: December 15, 2017
Date of entry into force: March 15, 2018 Adopted on November 23, 2017, the Uniform Act on Mediation (UAM) is the tenth uniform text adopted by OHADA. The new text fills the legislative void that existed in most OHADA Member States in the area of mediation, which is an amicable mode of disputes settlement. Inspired by the UNCITRAL Model Law on International Commercial Conciliation, the UAM adopts a broad definition of mediation, conceived as « any process, whatever its name, in which the disputing parties request a third party to assist them in reaching an amicable settlement of their dispute, conflictual relationship or disagreement […] involving natural or legal persons, including public entities or States « . The text also regulates the mediation process and sets out the guiding principles for the conduct of a mediation: respect for the will of the parties, moral integrity, independence and impartiality of the mediator, confidentiality and effectiveness of the mediation process. Important provisions are also devoted to the execution of a mediation agreement.
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