OHADAOHADA : the means of recourse against an arbitral award

May 6, 20210


 

INTRODUCTION

The OHADA legislator[1] uses the term “arbitration”, in the uniform act relating to the right of arbitration adopted on November 23, 2017 (“AUA”), without defining it. It is considered by the doctrine as a private mode of dispute resolution based on the parties’ agreement[2] or simply as conventional justice.

Arbitration is therefore a procedure for the settlement of disputes by a private person, called an arbitrator, invested by the parties with the power to judge. It is frequently used to settle disputes arising from complex international contracts[3].

It should be noted that in the OHADA area, traditional arbitration, based on the AAU of November 23, 2017, is intended to apply to any arbitration when the seat of the arbitral tribunal is in one of the States Parties[4].

This Uniform Act governs ad hoc arbitration where the court is located in the Ohada space, as well as institutional arbitration held under the auspices of privately funded arbitration institutions that exist in the Ohada space. Ad hoc arbitration refers to arbitration conducted by an arbitral tribunal independently of any arbitral institution, whereas institutional arbitration is conducted under the aegis of an arbitral institution.

This uniform act opens this way of dispute resolution to any natural person or legal entity of public or private law. As regards legal persons governed by public law, the Uniform Act provides that they may be parties to an arbitration, regardless of the legal nature of the contract, but without being able to invoke their own law to challenge the arbitrability of a dispute, their capacity to compromise or the validity of the arbitration agreement.

[5] Thus, arbitration may be sought in respect of rights that are freely available to the parties. This clarification indicates that arbitration is not limited to commercial matters.

The AAU aims at giving the parties all guarantees of efficiency in the settlement of their disputes, by affirming the autonomy of the arbitration agreement[6], by reiterating the principle of adversarial proceedings[7] and by enshrining the powers of the arbitrator, who is the only judge of the merits, but also by providing for the intervention of the judge of the judicial order, essentially for the appointment of the arbitrators, if necessary, and for the review of the arbitral award.

Furthermore, the AAU analysis shows that in an arbitration proceeding, the parties are in control of the process. Through the arbitration agreement, the parties choose the arbitrators and determine the procedure that the arbitrators must follow until the arbitral award is rendered. In addition, the parties are often called upon to collaborate in the resolution of the dispute.

Once the parties have constituted their arbitral tribunal, they expect the tribunal to make an arbitral award in accordance with the procedure and forms agreed upon by them.

If the arbitral award is indeed a jurisdictional decision, it is not a jurisdictional decision like any other. It is a decision rendered on the basis of law by an independent court or tribunal and is res judicata. However, unlike a judgment or a ruling rendered by a court of law instituted by the State, the arbitral award is a decision rendered by a court or a jurisdiction which is itself the work of the parties. Thus, the guarantees of good justice are given to the parties themselves.

Being a justice organized by the parties themselves, it is therefore difficult to conceive that the same parties exercise recourse against the award rendered.

With regard to this state of affairs, article 25 of the uniform act provides: “the arbitral award is not subject to opposition, appeal or cassation”. And Mr. Denis Roger SOH FOGNO indicates that the exclusion of these three means of appeal is entirely justifiable[8]. Being a conventional justice, it is difficult to see a person, resorting to arbitration and then refusing to follow the procedure, to the point of being judged by default, hence the exclusion of the opposition, he explains.  He adds then that the exclusion of the appeal finds its foundation always in the conventional origin of the arbitration, because the arbitrators do not rule in first resort, since they are not integrated into the judicial organization of the States. However, the parties may expressly provide for this procedure in the arbitration agreement. Finally, since appeals are already excluded, it is only logical that appeals to the Supreme Court should also be excluded. Indeed, the appeal in cassation aims at verifying the application of the law by the judges of the merits. Since arbitrators are not obliged to apply the law,[9] this exclusion becomes quite obvious.

However, it may happen that the arbitral tribunal has violated certain mandatory rules of law or that the award prejudices the rights of third parties who were not called to the arbitration, or that it has discovered a fact that was unknown to the arbitral tribunal and to a party and that is of such a nature as to exert a decisive influence on the resolution of the dispute, or finally that the award contains material errors and omissions that affect it. In such situations, the AAU provides for remedies that may be exercised against an arbitral award, namely annulment (I), which is the principal remedy; third party proceedings (II), revision of the award (III) and reparation and/or interpretation of an arbitral award (IV).

  1. SETTING ASIDE AN ARBITRAL AWARD

I.1 Legal basis and consequences of an action to set aside an arbitral award

The basis for an action to set aside an arbitral award is Article 25 (2) AUA. This article indicates that the arbitral award may be the subject of an action to set aside which must be brought before the competent court in the State Party.

Indeed, the recourse to set aside the arbitral award is a judicial recourse of which the arbitral procedure is a prerequisite. It is a recourse by which one of the parties to the arbitral proceedings brings an action before the State court in order to have the arbitral award set aside. If the court decides to set aside the award, the arbitration proceedings are deemed never to have taken place. The annulment of the proceedings is retroactive, as the arbitrators are deemed never to have ruled, the award is deemed never to have been made, and the dispute between the parties is deemed never to have been resolved.

It is important to note that the parties may, by an express statement in the arbitration agreement, exclude any recourse to set aside an arbitral award provided that the award is not contrary to international public policy.

[10] Under this point, we will consider the cases in which an action to set aside an arbitral award may be brought (I.1.1.) before addressing the question of “competent jurisdiction” in the Democratic Republic of Congo, in specie casus (I.1.2.).

I.1.1. Cases in which an action to set aside an arbitral award may be brought

Article 26 AUA lists six reasons for which an action to set aside an arbitral award may be brought:

If the arbitral tribunal ruled without an arbitration agreement or on a null and void or expired agreement;

If the arbitral tribunal was improperly composed or the sole arbitrator improperly appointed;

If the arbitral tribunal has ruled without complying with the mission entrusted to it;

If the principle of adversarial proceedings was not respected;

If the arbitral award is contrary to international public policy;

If the arbitral award is devoid of any motivation.

Indeed, the application for setting aside is admissible as soon as the award is made. It ceases to be so if it has not been exercised within one month of the service of the award provided with the exequatur.

To mitigate the slowness of the internal jurisdictions of the States Parties, the AAU fixes certain time limits to be respected as of the seizure of the competent jurisdiction until the delivery of the award.

Thus, the competent court, as from its seizure, has three months to rule. If it fails to do so, it is automatically deprived of jurisdiction over the claim. The most diligent party has the possibility to bring the appeal before the Common Court of Justice and Arbitration (“CCJA”) within the following fifteen days.

I.1.2. Competent jurisdiction to annul arbitral awards in the DRC

It should be noted at the outset that in the DRC there is no legal provision designating a court to hear an action for annulment of an arbitral award subject to Community law. The legislator of the uniform act refers, as usual, to the “competent judge in the State party”. This judge may vary from one State to another.

However, in order to find a solution, we have referred to two legislations of the other Member States of the organisation.

In Cameroon as in Ivory Coast, the designation of this jurisdiction is unequivocal. For the former, the answer is found in Article 4 of Law No. 2003/009 of 10 July 2003 designating the competent courts referred to in the Uniform Act on Arbitration Law and determining their mode of referral. The text provides: “the competent court referred to in Articles 25 and 28 of the Uniform Act on Arbitration Law is the Court of Appeal”.

We have taken the Ivorian solution from the CCJA’s judgment No. 010/2003[11]. 11] The CCJA noted that since the Uniform Act does not specify the competent court to hear an action to set aside an arbitral award, it is necessary to refer to the national law of the State party concerned in order to determine the court before which the action to set aside must be brought. According to article 44 of the Ivorian law n° 93-671 of August 9, 1993 relating to arbitration, “the appeal and the recourse to annulment shall be brought before the Court of Appeal in whose jurisdiction the arbitral award was made”; in the present case, the arbitral award having been made in Abidjan, it is indeed the Court of Appeal of Abidjan which was competent to hear the recourse to annulment.

All in all, it must be said that the solution proposed by these two States does not necessarily imply that the arbitrators rule in the first degree because, as we have already pointed out, the arbitrators are not integrated into the judicial organization of the States. Nevertheless, the Congolese legislator should unequivocally designate the competent court to hear appeals to set aside an arbitral award subject to Community law.

  1. THE THIRD PARTY OPPOSITION

 Third party proceedings are open to any person before the court of the State party that would have had jurisdiction in the absence of arbitration and where the award prejudices his rights.

[12] In the same vein, article 80 of the Congolese Code of Civil Procedure provides that “any person may file third-party proceedings against a judgment that prejudices his or her rights, and in which neither he or she nor those he or she represents have been summoned.

In accordance with Articles 25 AUA and 80 of the Congolese Code of Civil Procedure, the Claimant is bringing a third-party claim before the competent court to obtain the withdrawal (reversal) of the arbitral award.

The application for third party proceedings must also specify the arbitral award that is being challenged, indicate how the award prejudices the rights of the third party opponent and state the reasons why the third party opponent was unable to participate in the main dispute.

III. REVISION

Developed in a praetorian way by the French judicial jurisprudence, the recourse in revision is open against the arbitral awards in Community law. It is article 25 of the AAU that opens the right to this remedy. It should be noted that all arbitral awards falling within its scope may be challenged by means of an application for review when the circumstances so justify.

Revision is an extraordinary and retractable remedy by which the parties return to the arbitrators who have already ruled and ask them to modify their decision. This recourse is only possible because of the discovery of a fact that is of such a nature as to have a decisive influence on the solution of the dispute and that, prior to the making of the award, was unknown to the arbitral tribunal and to the party requesting the revision[13].

13] These forms of arbitration may be subject to review when the court that rendered them is located in the OHADA area.

Article 25 AAU specifies in fine that when the arbitral tribunal can no longer be convened, the appeal is brought before the court of the State Party that would have had jurisdiction in the absence of arbitration. This makes the appointment of the competent court, in the DRC, necessary.

It should be noted that this procedure is necessary for the law of arbitration proceedings because the application for review contributes to guarantee the fairness of the decision.

  1. REPARATION AND/OR INTERPRETATION OF AN ARBITRAL AWARD

At first sight, everything seems to be in opposition between the request for interpretation and the request for review of arbitral awards. Unlike the application for review, the application for interpretation cannot claim to modify the decision rendered. Georges Scelle stated: “The application for interpretation is not, strictly speaking, an appeal against the award; it is rather a confirmation procedure”[14]. [14] The effects of the appeals would therefore be completely different.

Since the parties have undertaken to comply with the arbitral decision, the award is binding. The principle of respect for res judicata is of essential importance. It limits recourse to interpretation and, to a certain extent, to revision.

In principle, the award divests the arbitral tribunal of jurisdiction over the dispute.
15] Nevertheless, the arbitral tribunal has the power to interpret the award or to rectify material errors and omissions in the award.

Where the arbitral tribunal has failed to rule on a claim, it may do so by means of an additional award.

In either of the above cases, the request must be made within thirty days of the notification of the award. The arbitral tribunal shall have a period of forty-five days to decide.

If the arbitral tribunal cannot be reconvened, it is for the competent court in the State Party to decide.

The interpretation thus makes it possible to establish the security of the rights of each of the parties.

CONCLUSION

The OHADA Uniform Act on Arbitration institutes a specific remedy for an arbitral award, namely an action for annulment. However, it excludes certain means of recourse, in particular appeal, opposition and appeal to the Supreme Court.

All in all, as far as the means of recourse against an arbitral award are concerned, the African legislator has enshrined recourse for annulment, recourse for revision, third party opposition and the power of the arbitral tribunal to repair or interpret the award.

It has been noted in this brief analysis that some African States have designated the competent court to deal with this type of appeal. This is the Court of Appeal. On the other hand, the Democratic Republic of Congo, until now, does not have any legislation in this sense. We thus call upon the legislator to fill this legal void by designating, without equivocation, the jurisdiction called to hear appeals against arbitral awards subject to Community law.

By Maitre Trésor Ilunga Tshibamba


1] The Organization for the Harmonization of Business Law in Africa was established by the Treaty signed in Port Louis (Mauritius) on October 17, 1993 and amended at the Summit of Heads of State in Quebec City on October 17, 2008. This study will focus on the Uniform Act on Arbitration adopted on 23 November 2017 in Conakry (Guinea).

2] Read on this subject, Coco Kayudi, les modes alternatifs de règlement des conflits, in juriafrique.com, published on July 23, 2017

3] HILARION Alain BITSAMANA, Ohada law dictionary, Ohadata D-05-33, 1st Ed, Pointe-Noire, 2003

4] Article 1 AUA

5] article 2 AUA

6] Article 4 AAU

7] Article 14 AUA

8] Mr Denis Roger SOH FOGNO, Le contentieux de l’annulation des sentences issues de l’arbitrage traditionnel dans l’espace de l’OHADA, in Revue camerounaise de l’arbitrage, n° 23, October – November – December, 2003, p. 3

9] According to article 14 AUA, the parties may submit the arbitration proceedings to the procedural law of their choice.

10] Article 25, paragraph 2

11] CCJA, judgment n° 010/2003 – Mr. DELPECH Gérard and Mrs. DELPECH Joëlle v. Sté SOCTACI

12] article 25 AUA

13] paragraph 6 of article 25 AUA

14] G. Scelle, Report on Arbitral Procedure (A/CN.4/18), A.C.D.I., 1950, vol. II, p. 143.

15] Article 22 AAU

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