Eight concepts are enough to understand an OHADA arbitration file and to re-read a clause usefully. The arbitration agreement, which survives the nullity of the contract. The seat, which is not the hearing venue but decides the law of the procedure and the court that hears the challenge. The uniform act, which serves as the arbitration statute in the seventeen member States. The supporting judge, who unblocks the proceedings. Enforcement, national or community wide, which stops at the borders of the OHADA area. The challenge, setting aside or contestation of validity. International public policy, which is not conformity with French law. And immunity from execution, which decides whether anything is actually recovered.
Costly misunderstandings in French African contracts almost always start with a misread word. A general counsel who believes the seat of the arbitration means the city where hearings will be held accepts without discussion a stipulation that will decide, ten years later, before which court the setting aside of the award will be argued. Another, reading that an award made under the auspices of the Common Court has enforceable force in the member States, concludes that it is a title in Paris.
This page defines the concepts that recur in every OHADA arbitration file, stating for each what it changes in practice and the text that grounds it.
1. Arbitration agreement, arbitration clause and submission agreement
The arbitration agreement is the agreement by which the parties entrust the settlement of their dispute to an arbitral tribunal. It takes two forms depending on when it is concluded. The arbitration clause is stipulated in the contract, before any dispute, and covers future disputes. The submission agreement is concluded after the dispute has arisen, for that specific dispute. The treaty expressly refers to both when it opens access to the Common Court’s arbitration procedure (OHADA Treaty, article 21).
The distinction is not merely chronological. An arbitration clause is negotiated while the parties agree and is therefore drafted in good conditions. A submission agreement is negotiated when they no longer agree, and experience shows that the party favoured by an imprecise clause has no reason to clarify it once the dispute has arisen. That is why the essentials are settled when the contract is signed.
One essential property should be remembered: the arbitration agreement is independent of the main contract and its validity is not affected by the nullity of that contract (Uniform Act on Arbitration, article 4). That autonomy deprives of effect the strategy of attacking the contract in order to escape the arbitrator, and it explains why the arbitrator may decide the very question of the validity of the contract that provides for it.
2. The seat of the arbitration, and the hearing venue
The seat of the arbitration is the legal connection of the proceedings. It determines the law applicable to the procedure and the court competent to hear an application to set the award aside. It is not an address: hearings may be held elsewhere, including by video link, without affecting the seat, provided the clause or the tribunal says so.
Its reach is considerable in the OHADA area, since the Uniform Act on Arbitration applies to any arbitration whose seat is in a member State (article 1). Fixing the seat in Abidjan or Dakar therefore places the arbitration under that text, with its six grounds of annulment and its six month time limit. Fixing it in Paris places it under the French regime, where review is confined to the five complaints of article 1520 of the code of civil procedure.
The practical consequence fits in one sentence: a clause silent on the seat leaves open the question of the law of the procedure and of the court that will hear the challenge, and that debate is settled at the worst possible moment, once the dispute has arisen and each party sees its own interest in it.
3. Uniform act, uniform acts, treaty
The word covers two nested realities. The Treaty on the Harmonisation of Business Law in Africa, signed at Port Louis on 17 October 1993 and revised at Quebec on 17 October 2008, is the founding instrument creating the Organisation, its institutions and the Common Court of Justice and Arbitration. The uniform acts are the texts adopted under that treaty, directly applicable in the member States.
Two of them concern an arbitration file directly. The Uniform Act on Arbitration, adopted at Conakry on 23 November 2017, serves as the arbitration statute in each member State. The Uniform Act organising simplified recovery procedures and enforcement measures, in the version adopted at Kinshasa on 17 October 2023 and in force since 16 February 2024, governs enforcement of titles in the area.
That architecture explains a drafting precaution. A clause designating the law of a member State as the law of the contract necessarily covers the uniform acts, which form an integral part of it, but it is better said expressly, because the opposite reading has already been argued.
4. The supporting judge and the enforcement judge
The supporting judge is the national court approached during the arbitration, to unblock what the parties or the institution cannot resolve: appointing an arbitrator where one is lacking, deciding a challenge to an arbitrator, extending the time limit for the award. It is the judge of the State of the seat, which gives that choice very concrete reach, since the court will have to be approached urgently, with its own timelines and practices.
The enforcement judge intervenes after the award, to give it enforceable force. In the OHADA area it is the competent court of the member State where the arbitration falls under the Uniform Act (article 30), and it must rule within a period not exceeding fifteen days (article 31). In France it is the judicial court of Paris for awards made abroad, seised by application and without adversarial debate (code of civil procedure, article 1516).
A third judge appears in enforcement files, the execution judge, who authorises conservatory measures and decides challenges to attachments. It intervenes only once the question of the title is settled, except in conservatory matters where it may act earlier, where the claim appears well founded in principle and recovery is under threat (code of civil enforcement procedures, article L. 511-1).
5. National enforcement, community enforcement, French enforcement
The word covers three different decisions, and confusing them is the source of the costliest misunderstanding. National enforcement is what a court of a member State grants to an award falling under the Uniform Act: it opens forced execution in that State. Community enforcement is what the Common Court of Justice and Arbitration alone grants for awards falling under the treaty, and it opens execution across the territory of the seventeen member States, with four exhaustively listed grounds of refusal (OHADA Treaty, article 25).
French enforcement is a third decision, independent of the first two. It is indispensable in order to attach assets in France, and it is indifferent to the existence or content of any enforcement obtained in Africa. The French judge checks that the existence of the award is established and that it is not manifestly contrary to international public policy (code of civil procedure, article 1514), with no condition of reciprocity and no review of the law applied.
The same logic applies to court decisions. Article 20 of the treaty gives judgments of the Common Court enforceable force in the territory of the member States, and nowhere else.
Two further words recur about the award itself. A partial award decides part of the dispute, for instance the tribunal’s jurisdiction or liability in principle, leaving the rest for a later decision; a final award exhausts the tribunal’s mandate. The distinction matters in arbitration administered by the Common Court, since the arbitrator must submit the draft of each to the Court before signature, the Court being able to propose only modifications of pure form (OHADA Treaty, article 24). It matters too for the timetable of challenges, each award opening its own.
6. Setting aside, contestation of validity, revision, third party opposition
An application to set aside is the route available against an award falling under the Uniform Act. It is brought before the competent court of the member State where the tribunal sits, on six exhaustively listed grounds, and it is the only available recourse since the award is subject to neither opposition, nor appeal, nor cassation (Uniform Act on Arbitration, articles 25 and 26).
Contestation of validity is its functional equivalent for awards made under the auspices of the Common Court. It is brought before the Court itself, which concentrates the litigation and makes it more predictable. The Court’s arbitration rules further organise two exceptional routes, revision, where a fact liable to have a decisive influence is discovered after the award, and third party opposition, available to a person who was not a party and whom the award prejudices.
None of these routes permits a rehearing on the merits. The time limit follows a distinctive rule worth knowing: an application to set aside is admissible from the moment the award is made and ceases to be admissible one month after service of the award bearing the enforcement order (article 27).
7. Arbitrability, international public policy, indirect jurisdiction
Arbitrability means the capacity of a dispute to be decided by an arbitrator. In African public contracts it long served as an escape route, the public entity arguing that its own law forbade it to submit to arbitration. The Uniform Act closed that door: legal persons governed by public law may be parties to an arbitration without being able to contest the arbitrability of the dispute or the validity of the agreement by invoking their own law (article 2).
International public policy is not conformity with the law of the forum. An award that adopts a debatable interpretation of the contract or assesses loss generously does not offend it: it displeases. The complaint succeeds on the ground of infringements of essential principles, corruption, fraud, violation of fundamental rights of the defence. It is among the grounds of annulment in the OHADA area as among the five French complaints (code of civil procedure, article 1520), each legal order defining its own.
Indirect jurisdiction is the review by which the requested court verifies that the foreign court had jurisdiction under its own criteria. It concerns judgments, not arbitral awards, whose French regime contains no such review. That is one of the reasons an award travels better than a judgment.
8. Immunity from jurisdiction, immunity from execution, waiver
Immunity from jurisdiction blocks the proceedings themselves. Immunity from execution blocks coercive measures against property, whatever the regularity of the title. The first is argued at the start of the case, the second at the end, and it is the second that decides whether anything is actually recovered.
In France, no conservatory or enforcement measure may be taken against property belonging to a foreign State without prior authorisation from the judge (code of civil enforcement procedures, article L. 111-1-1), and that authorisation requires one of three exhaustively stated conditions, one of which covers an arbitral award made against that State (article L. 111-1-2). Property of diplomatic missions falls under a reinforced regime, where the waiver must be express and specific (article L. 111-1-3).
Waiver is the act by which a public entity accepts in advance that those protections will not be available to it. It is negotiated when the contract is signed and never afterwards, and its drafting obeys precise requirements.
Frequently asked questions
Arbitration clause or submission agreement, what is the difference
Timing. The arbitration clause is stipulated in the contract, before any dispute, and covers future disputes. The submission agreement is concluded after the dispute has arisen and covers only that dispute. The OHADA Treaty refers to both for access to the Common Court’s arbitration (article 21). The practical difference is decisive: the clause is negotiated while the parties agree, the submission agreement once they no longer do, and the party favoured by imprecision then has no reason to consent to correcting it.
Is the seat of the arbitration the hearing venue
No. The seat is a legal connection: it determines the law of the procedure and the court that will hear an application to set aside. Hearings may be held elsewhere, including by video link, without affecting the seat, provided the clause or the tribunal so provides. That confusion leads companies to accept without discussion a stipulation that will decide, years later, before which court the setting aside of their award is argued.
What is a uniform act
It is a text adopted under the OHADA Treaty, directly applicable in the seventeen member States. Two concern arbitration: the Uniform Act on Arbitration, adopted at Conakry on 23 November 2017, which serves as the arbitration statute in each member State, and the Uniform Act on simplified recovery procedures and enforcement measures, adopted at Kinshasa on 17 October 2023 and in force since 16 February 2024, which governs enforcement of titles in the area.
What does community enforcement mean
It is the decision by which the Common Court of Justice and Arbitration confers enforceable force on an award made under its auspices. It alone has jurisdiction to grant it and may refuse only in four cases: absence of an arbitration agreement or an agreement that is void or expired, disregard of the mission, breach of due process, conflict with international public policy (OHADA Treaty, article 25). Its effect is limited to the territory of the member States: in France, French enforcement is required.
Immunity from jurisdiction or from execution, what is the difference
The first prevents a judge from hearing the dispute, the second prevents attachment of assets once the title is obtained. In OHADA arbitration the first is largely neutralised, since a legal person governed by public law cannot contest arbitrability by invoking its own law (Uniform Act on Arbitration, article 2). The second remains intact and is dealt with upstream, by an express and specific waiver clause, French law requiring that specificity for property of diplomatic missions (code of civil enforcement procedures, article L. 111-1-3).