An award made against a State or a public undertaking in French speaking Africa rarely runs into the arbitrator’s jurisdiction, since the Uniform Act forbids the public entity to contest arbitrability by invoking its domestic law. It runs into enforcement. In the OHADA area the immunity regime was recast by the Uniform Act on enforcement measures of 17 October 2023, in force since 16 February 2024. In France, no attachment is possible against the property of a foreign State without prior authorisation from the judge and without one of the three conditions exhaustively laid down by statute, one of which expressly covers the case of an arbitral award. The only effective protection remains the waiver clause, negotiated at signature.
A French engineering group obtains in 2025 an award ordering a national electricity company to pay it 6.1 million euros. The award is regular, enforced in the debtor’s State, and perfectly unenforceable: every attempt meets immunity, raised against all property, including property devoted to purely commercial activity. The creditor then discovers that its debtor holds a representation account and a building in France, and wonders whether a detour through Paris will change anything. The answer depends on three things, the characterisation of the entity, the use of the asset, and the exact content of the contract signed six years earlier.
This page deals with those three things, with the OHADA regime resulting from the 2023 reform, with the French lock of articles L. 111-1-1 and following of the code of civil enforcement procedures, and with the drafting of the waiver clause which alone defuses the problem before it arises.
1. Two distinct locks, only one still closed
The law of immunities distinguishes two protections that practice often confuses. Immunity from jurisdiction blocks the proceedings themselves, by preventing a court from hearing a dispute involving a foreign State. Immunity from execution blocks coercive measures against property, whatever the regularity of the title obtained. The first is argued at the start of the case, the second at the end, and it is the second that decides recovery.
In the OHADA area the first lock has been largely neutralised in arbitration. 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 arbitration agreement by invoking their own law (Uniform Act on Arbitration, article 2). The classic State contract argument, drawn from incapacity to submit to arbitration, is therefore closed, and it has become pointless to argue it.
Only the second lock remains, and it is defended all the more vigorously now that the first has fallen. The practical consequence is simple to state: in a contract with an African public entity, the negotiating effort must bear on waiver of immunity from execution, not on the arbitration clause itself, which will hold in any event.
2. OHADA law before the reform, and the litigation it produced
The 1998 Uniform Act organising simplified recovery procedures and enforcement measures laid down an immunity from execution for legal persons governed by public law, in terms so broad that part of the case law read it as covering all such persons and all their property, including property devoted to ordinary industrial and commercial activity.
That reading produced abundant litigation before the Common Court of Justice and Arbitration, and a well identified economic effect: creditors of national companies, even for ordinary supplies, ended up with titles that could not be enforced in the OHADA area, which raised the cost of credit granted to those entities and pushed suppliers to demand bank guarantees issued outside the area. Immunity protected the public entity and penalised its signature.
That is the situation the 2023 revision sought to correct, by narrowing the scope of the protection. For a French creditor, the consequence is that an old file and a recent one are not handled in the same way, and that the date on which enforcement proceedings were commenced becomes a question of characterisation.
3. The reform of 17 October 2023
The new Uniform Act organising simplified recovery procedures and enforcement measures was adopted at Kinshasa on 17 October 2023 and published in the OHADA Official Journal, special issue of 15 November 2023. It entered into force on 16 February 2024, ninety days after that publication. Proceedings commenced before that date remain governed by the 1998 text, which requires enforcement steps to be precisely dated before any analysis.
The reform rewrote the immunity from execution regime for legal persons governed by public law and added an article intended to define its contours, in a restrictive direction. The general scheme of the new arrangement is to stop treating immunity as a general exception attached to the status of the debtor, and to treat it as a protection attached to the nature and use of the property, which brings OHADA law closer to international standards and, incidentally, to French law.
The exact reach of that rewriting is being built before the Common Court since 2024, and it calls for case by case verification, in particular on the position of public undertakings operating in competitive markets. The methodological point to retain is that immunity is no longer an argument that closes the discussion: it has become a question of characterising the entity and the use of the property attached, that is to say a question of evidence.
4. State and public undertaking: a decisive characterisation
The distinction between the State itself and the entities it controls governs everything else, and it is not settled by a corporate name. A national company with legal personality, its own assets, commercial accounts and a competitive activity is not the State, even if its capital is entirely public and its chief executive is appointed by decree. An administrative public body, a regulator or an autonomous port are in a different position, and each configuration calls for its own demonstration.
That characterisation is prepared from the contract stage and documented during performance. The entity’s constitution, its published accounts, its tenders, its bond issues, the nature of the services it invoices, all of that forms a file that is very hard to reconstruct five years after the breakdown. A prudent creditor archives those documents while they circulate naturally, that is during the life of the contract.
Two things turn on it. In the OHADA area, the characterisation determines whether the debtor still enjoys immunity after the 2023 reform. In France, it determines whether the attachment falls under the general regime or under the special regime applicable to the property of foreign States, which is markedly more demanding for the creditor.
5. The French lock: prior authorisation and exhaustive conditions
France adopted in 2016 a regime specific to measures targeting the property of foreign States. No conservatory or enforcement measure may be implemented against property belonging to a foreign State without prior authorisation from the judge, given by order on application (code of civil enforcement procedures, article L. 111-1-1). That authorisation is not a formality: it is the first filter, and an attachment carried out without it risks nullity.
The judge may authorise the measure only where one of the three following conditions is met: the State has expressly consented to the application of such a measure; it has reserved or allocated the property to satisfying the claim that is the subject of the proceedings; or, where a judgment or arbitral award has been made against it, the property is specifically in use or intended for use otherwise than for non commercial public service purposes and has a connection with the entity against which the proceedings were brought (article L. 111-1-2).
The third condition is the one available to the holder of an award, since the text expressly covers that case. It requires a two stage demonstration, first on the use of the property, then on its connection with the entity ordered to pay. Property of diplomatic and consular missions falls under a reinforced regime, where the waiver must be express and specific (article L. 111-1-3). In other words, an embassy account is not a target, save under a stipulation of unusual precision.
6. Enforcement recognition is not execution
A frequent confusion leads creditors to give up too early. Immunity from execution blocks coercive measures against property, not recognition of the title. Before the French judge, an award made abroad is recognised or enforced if its existence is established and if it is not manifestly contrary to international public policy (code of civil procedure, article 1514), and the enforcement order is obtained on application before the judicial court of Paris (article 1516).
Obtaining that order has value of its own, even where attachment looks difficult. It fixes the title, starts interest running under French law and opens the way to any later opportunity, a newly located asset, a disposal, an identified cash flow. It is also considerable negotiating leverage against a public debtor that cares about its signature on international markets.
It finally opens the field of conservatory measures, which are not the same as forced execution but follow, for the property of a foreign State, the same prior authorisation regime. Against the property of an entity distinct from the State, the general law route remains available, the judge being able to authorise a conservatory measure where the claim appears well founded in principle and recovery is under threat (code of civil enforcement procedures, article L. 511-1).
A timing argument completes the case for proceeding. Once enforcement has been granted, the foreign decision takes effect under French law, and the Court of Cassation has held that default interest runs only from the enforcement decision (Cass. 1re civ., 19 November 2015, no. 14-25.162). On a claim of several million euros, each year of waiting is a dead loss that nothing later recovers. A creditor that postpones the French procedure while waiting to know whether attachment will be possible therefore pays twice, in tied up cash and in interest that never ran. Better to fix the title early, even if execution comes later.
7. Locating and characterising assets
The decisive work is evidential before it is procedural. It consists in identifying property located in France and showing that it is used otherwise than for non commercial public service purposes. An account fed by commercial receipts, the rents of an investment property, the proceeds of sale of a cargo, the cash of an operating branch, are all situations where the demonstration is possible. A single account serving indiscriminately the running of an official representation is far less so.
Attachment techniques do not differ from those of the general law once the lock is lifted, and are chosen according to the nature of the asset, whether a bank account, a building or a vessel. That last case deserves particular attention in French speaking Africa files, where national transport companies and port operators hold mobile assets that call at French ports.
Timing counts as much as evidence. An asset spotted today may have gone in six months, and the judge’s prior authorisation presupposes a file already assembled. The practical rule is to investigate the location of assets during the arbitration, not after the award, so that the application is ready the day the title becomes available.
8. The waiver clause, the only real protection
Everything above comes down to one sentence: waiver of immunity is negotiated when the public counterparty needs the contract, and it is out of reach the day after the award. A clause that merely states that the contract is commercial in nature is not enough, any more than a general waiver slipped into standard terms.
A useful clause has three elements. It expressly characterises the contract and the operations it provides for as acts of a commercial nature. It states an irrevocable, express and specific waiver of immunity from jurisdiction and of immunity from execution. And it designates, so far as possible, the property and accounts the waiver covers, since French law requires that specificity for the property of diplomatic missions (article L. 111-1-3) and since designation considerably assists the demonstration of use required by the general text (article L. 111-1-2).
That negotiation is more achievable than is supposed when it is presented as the counterpart of a price or a payment period, and not as a mark of distrust. It combines usefully with a bank guarantee issued by a bank established outside the area, which offers a parallel enforcement route free of any argument about immunity.
Frequently asked questions
Does a national company enjoy immunity like the State itself
Not automatically, and the answer depends on where the attachment takes place. In France, the special regime of articles L. 111-1-1 and following of the code of civil enforcement procedures covers property belonging to a foreign State. A company with legal personality, its own assets and a competitive activity is not the State, and the discussion then turns on commingling of assets and on the use of the property attached. In the OHADA area, the question arises under the text resulting from the reform of 17 October 2023, which narrowed the scope of the protection.
Must a waiver of immunity identify specific property
For the property of diplomatic and consular missions, yes: French law requires an express and specific waiver (article L. 111-1-3). For other property, an express waiver suffices in theory, but designating the accounts and assets concerned considerably assists the demonstration of use required by article L. 111-1-2 and deprives the debtor of its most convenient argument. A well made clause therefore states the waiver in general terms, then names the property and accounts it covers in particular.
Does immunity prevent obtaining enforcement in France
No. Immunity from execution blocks coercive measures against property, it does not block recognition of the title. The enforcement 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), and rules on application (article 1516). Obtaining that order remains useful even where attachment looks difficult, if only to fix the title, start interest running under French law and seize a later opportunity.
Does the 2023 OHADA reform change anything for an attachment in France
Not directly. An attachment carried out in France follows French law, and the Uniform Act of 17 October 2023 applies only to enforcement measures in the member States. The reform nonetheless matters to the creditor, because it reopens prospects of local enforcement and changes the balance in negotiation. Above all it requires steps to be dated: proceedings commenced before 16 February 2024 remain governed by the 1998 text.
Can an embassy bank account be attached in France
In practice, no, save an express and specific waiver covering that property. The code of civil enforcement procedures reserves a reinforced regime for property used or intended for use in the exercise of the functions of a diplomatic or consular mission (article L. 111-1-3). A single account serving the running of an official representation is presumed to fall into that category. The creditor’s effort must therefore bear on commercial assets, operating accounts, investment property or contractual receivables, and not on the mission’s accounts.