This eighteen-page practical guide deals with arbitration with a partner in French-speaking Africa, from drafting the clause to attachment in France. It is written for the legal departments of exporting companies, managers of industrial SMEs, commodity traders, public works and engineering groups, credit insurers and trade finance banks.
It distinguishes the two arbitration systems organised by OHADA, details the seven decisions every clause must make, sets out the conduct of the proceedings and what becomes of the award in the OHADA area, and then deals with the two questions that decide actual recovery: enforcement of the award in France and the public debtor’s immunity from enforcement. It includes a case study with figures, a roadmap, three model clauses and a glossary.
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Frequently asked questions
My clause provides for arbitration but does not say where: is that a problem?
Yes, and it is the most expensive defect. The seat of the arbitration is not the place of the hearings; it is the legal connection of the proceedings, which determines the law applicable to the procedure and the court with jurisdiction to hear an action to set aside. Under its article 1, the Uniform Act on Arbitration of 23 November 2017 applies precisely where the seat is in a State party. A clause that is silent on this point opens a preliminary debate counted in months of proceedings, before the merits are even reached.
What is the difference between arbitration under the Uniform Act and CCJA arbitration?
Two systems coexist. Under the Uniform Act, the award is granted exequatur by a national court of the State party, which rules within a period that may not exceed fifteen days, and annulment is argued before that court, under articles 25, 30 and 31. Under the auspices of the Common Court of Justice and Arbitration, the Court administers the procedure, scrutinises the draft award and alone grants exequatur, which can be refused in four cases only, under articles 21, 24 and 25 of the OHADA Treaty. The choice is made in the clause, and it governs everything else.
Is an award made in Abidjan enforceable in France?
Not directly. Exequatur obtained in the OHADA area, whether from a national court or from the Common Court, has effect in the territory of the States parties and stops there. In France, the award is an award made abroad: it is recognised or enforced if its existence is established and if it is not manifestly contrary to international public policy, under article 1514 of the French Code of Civil Procedure, and its forced enforcement requires an exequatur order from the Paris Judicial Court, made on an ex parte application without adversarial debate, under article 1516.
My counterparty is a national company: can it refuse arbitration?
No, if it has signed an arbitration agreement. Article 2 of the Uniform Act on Arbitration provides that 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. The classic State contract argument is therefore closed. The battle moves to enforcement, where immunity remains the only real obstacle, and where everything depends on the waiver clause negotiated at signature.
How long does an OHADA arbitration take?
The Uniform Act sets a time limit for the arbitration of six months from the acceptance of the last arbitrator, which may be extended by agreement of the parties or by decision of the competent judge, under its article 12. This time limit is shorter than international practice and should be seen as a scheduling constraint rather than a promise of speed: extensions are frequent and their formalities must be complied with, failing which the validity of an award made out of time may be challenged. The actual duration depends above all on the time taken to constitute the tribunal.
Can I attach assets in France before I have the award?
Yes, by way of a conservatory measure. The enforcement judge may authorise a conservatory attachment or a judicial security interest where the claim appears well founded in principle and circumstances are likely to threaten its recovery, under article L. 511-1 of the French Code of Civil Enforcement Procedures. Arbitral proceedings under way and a quantified submission provide solid proof of the first point. Authorisation remains necessary as long as the title is not enforceable in France, since the exemption in article L. 511-2 requires an enforceable title.
What happens if my debtor invokes its immunity from enforcement?
The nature of the discussion depends on where the attachment takes place. In the OHADA area, the regime was recast by the Uniform Act on simplified debt recovery procedures and enforcement measures of 17 October 2023, in force since 16 February 2024, which narrowed the scope of the immunity of public entities. In France, no measure may be taken against an asset of a foreign State without the judge’s prior authorisation and one of the three conditions in article L. 111-1-2 of the Code of Civil Enforcement Procedures, one of which expressly covers the case of an arbitral award.
While the guide is on its way, the related analyses are freely available: OHADA arbitration, Uniform Act or CCJA, on the choice of system; drafting the arbitration clause, on what is decided before signature; challenging an OHADA arbitral award, on remedies; enforcing an award against a State or a public undertaking, on immunity from enforcement; the concepts to know before signing, for the vocabulary; and, on the court decisions side, enforcing an OHADA judgment or a CCJA ruling in France.