Brief Presentation On OHADA
As a result, on the 17th of October 1993, in Port Louis (Mauritius), the Treaty creating OHADA was signed. It was later amended at the summit of Heads of States on 17th October 2008 in Quebec (Canada).
The 17 OHADA member countries include Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Congo, Ivory Coast, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, Senegal, Chad, Togo and Democratic Republic of Congo.
This instrument of economic and legal integration resulted in a uniform and common legislation known as the "UNIFORM ACT" to govern identified entities as part of the “Business Law”. The respect and good implementation of this common legislation by the national courts is guaranteed by the Common Court of Justice and Arbitration (CCJA).
1. THE UNIFORM ACT
Nine (9) uniform acts have been adopted and are in force :
1.1 Uniform Act relating to General Commercial Law
Adopted on 17 April 1997 and revised on 15 December 2010, this Act provides for the standardization of rules applicable to traders and business activities in the OHADA common zone. It regulates the status of traders; registration in the Trade Register and Property Credit as well as registration renewals and radiation of property security; lease for professional use; commercial funds; commercial intermediaries; and trade sale
This Act was recently revised to take into account the status of entrepreneurs and computerized operation of the trade and property credit register.
1.2 Uniform Act relating to Commercial Companies and Economic Interest Groups
Adopted on 1 January 1998 and revised on 30 January, 2010, it provides rules for the establishment and operation of commercial companies and other economic interests. It also regulates the way in which certain activities of the companies are implemented.
1.3 Uniform Act relating to securities
Adopted on April 17, 1997 and revised 15 December 2010, this Act organizes securities for the benefit of a creditor in order to secure the fulfillment of an obligation or set of obligations towards a debtor.
1.4 Uniform Act relating to debt’s collection procedures and measures ofexecution
Adopted July 10, 1998, this Act outlines two (2) judicial procedures to be implemented by a creditor to oblige the debtor to fulfill its commitments: injunction to pay a sum of money and to issue an injunction or return a specified personal property.
It also outlines enforcement measures intended to compel a defaulting debtor to perform his obligations in case of judicial sentence.
1.5 Uniform Act relating to collective proceedings for wiping offdebts
This Act came into force on 1 January 1999 and was revised on September 10, 2015.
It outlines collective proceedings for wiping off traders legitimate debts. The Act was revised to include the reconciliation provision which is open to people experiencing current or foreseeable difficulties but are not yet in an insolvent state and aim to reach an amicable settlement with major creditors and others to resolve the situation. It also provides for patrimonial penalties, professional and criminal sanctions for the debtor and management of the company
1.6 Uniform Act relating to arbitration
This act was adopted March 11, 1999 and came into force on June 11, 1999.
It is the court of common arbitration for all Parties to OHADA.
It outlines the principles of arbitration law and its different phases: Arbitration convention, composition of the arbitral tribunal, course of the arbitration proceedings, arbitration decision and appeal against the arbitration decision.
1.7 Uniform Act relating to the harmonization of Accounting proceedures of companies
Although adopted March 24, 2000, the section regarding personal accounts of companies came into force on 1 January 2001, while that for consolidated and combined accounts came into force on 1 January 2002.
This Act relates to the harmonisation of accounting proceedures of companies. Annexed to this Act is the OHADA accounting procedure which outlines the accounting norms, account plan, rules for keeping the accounts and presentation of financial statements, financial reporting and other aspects of company accounting.
1.8 Uniform Act relating to the transportation of goods by road
This Act was adopted on March 22, 2003 and entered into force on 1 January 2004.
It is applicable to all transportation contracts of goods by road, when theorigin and destination as specified are within the OHADA jurisdiction.
1.9 Uniform Act relating to cooperative societies
This Act was adopted on December 15 2010 and entered into force on May 16 2011.It outlines the rules of the constitution and the operation of cooperative societies within the OHADA zone. The laws governing cooperatives are similar to those of commercial companies.
2. The Common Court of Justice and Arbitration (CCJA)
The CCJA was created to standardize the business jurisprudence and the interpretation of the Uniform Acts. Article 14 of the Treaty defines the powers of he CCJA which is to provide interpretation and ensure common implementation of the Treaty and the regulations made thereunder, the uniform acts and decisions.
2.1 The Judicial functions of the CCIA:
The CCIA is judge of annulment of sentences rendered as a last resort by national courts of member countries. As a result, it is seized directly by one of the parties to the proceedings through an appeal or by referral of a national court.
2.2 The advisory role of the CCIA:
The advisory role of the CCJA is to give its opinion on the interpretation and application of the Treaty, regulations promulgated to implement the Treaty and the Uniform Acts.
2.3 The role of the CCIA in Arbitration proceedings:
The CCJA is also involved in arbitration through the arbitration center of the CCJA.
Ibrahima Bemba BAH