OHADA organises not one arbitration but two. General law arbitration falls under the Uniform Act on Arbitration of 23 November 2017, applicable wherever the seat of the tribunal is in a member State: the award is made enforceable by a national court and any application to set it aside is argued before that court. Arbitration administered by the Common Court of Justice and Arbitration falls under the treaty and the Court’s rules, the Court administering the proceedings, granting enforcement alone and hearing challenges alone. The choice is made in the clause, and it governs everything else.
An industrial equipment supplier signs in January 2026 a 3.5 million euro contract with an Ivorian group. The dispute resolution clause runs to two lines and provides for arbitration, without saying which. Two years later the unpaid invoice is there, and the first question counsel asks is not about the debt: it is which regime the arbitration will follow, before which court the award will be challenged, and who will give it enforceable force. The clause should have answered that.
This page compares the two systems on the only criteria that change anything in practice: scope, the position of public entities, the conduct of the proceedings, enforcement, challenges, and the effect before the French judge.
1. Two systems, one organisation: the sorting rule
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, brings together seventeen States and has given the area a unified business law. In arbitration it produced two distinct instruments, and confusing them is the leading cause of badly drafted clauses.
The first is the Uniform Act on Arbitration, adopted at Conakry on 23 November 2017, which serves as the arbitration statute in each member State. It governs ad hoc arbitration as well as arbitration administered by an institution, wherever the seat of the tribunal is in a member State (article 1). The second is arbitration administered by the Common Court of Justice and Arbitration, organised by Title IV of the treaty and by the Court’s arbitration rules, where the same institution administers the proceedings and reviews the award.
The sorting rule is simple to state. If the clause designates the Common Court, it is the second system. Otherwise, provided the seat is in a member State, it is the first. A clause that designates nothing and fixes no seat does not escape the choice: it passes it to the tribunal and the court, which will settle it later, at greater cost, and not necessarily the way the creditor would have chosen.
2. The 2017 Uniform Act: what it governs
The connecting factor of the Uniform Act is the seat of the arbitral tribunal, a concept that is not the place where hearings are held but the legal connection of the proceedings. Fixing the seat in Abidjan, Dakar or Douala triggers application of the Uniform Act, whatever the nationality of the parties and whatever law governs the merits.
The text then settles most of what an arbitration statute must settle. The arbitration agreement is independent of the main contract and its validity is not affected by the nullity of that contract (article 4), which deprives of effect the defence of attacking the contract in order to escape the arbitrator. The tribunal has six months from acceptance by the last arbitrator, extendable by agreement of the parties or by decision of the competent judge (article 12). The award may be enforced only by virtue of an enforcement decision of a national court (article 30), which must rule within a period not exceeding fifteen days (article 31).
That system has the advantage of flexibility and the defect of dispersion. Flexibility, because the parties organise the procedure as they wish and may use the institution of their choice. Dispersion, because enforcement and any application to set aside are argued before a national court whose practice and timelines vary from State to State, and the clause must therefore choose that forum knowingly.
3. Arbitration administered by the Common Court
The second system rests on the parties’ intention and on a connection to the area. Under an arbitration clause or a submission agreement, any party to a contract may submit a contractual dispute to the treaty’s arbitration procedure, either because one of the parties is domiciled or habitually resident in a member State, or because the contract is performed wholly or partly in the territory of one or more member States (OHADA Treaty, article 21). The Court does not decide the dispute itself, it administers the arbitration and appoints or confirms the arbitrators.
One feature deserves the attention of legal departments used to European institutions. Before signing a partial or final award, the arbitrator must submit the draft to the Court, which may propose only modifications of pure form (article 24). The mechanism recalls that of the International Court of Arbitration of the International Chamber of Commerce. It adds a few weeks to the timetable and reduces the risk of an award falling for a defect of form, which, from the creditor’s standpoint, is a gain.
The other distinctive feature is the concentration of litigation. Enforcement falls to the Court alone, and challenges to the award are brought before it rather than before a national court. For a contract performed in several States of the area, that unity of jurisdiction brings a predictability general law arbitration does not offer.
4. Legal persons governed by public law
Litigation over African public contracts long stumbled on one objection: the public entity argued that its own domestic law forbade it to submit to arbitration, and the arbitration bogged down before it began. 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 arbitration agreement by invoking their own law (article 2).
The practical reach is considerable for a supplier of public equipment, a works contractor or a provider of essential services. It secures the clause at the jurisdiction stage. It says nothing, however, about what will happen at the enforcement stage, where immunity remains the real obstacle and is prepared by a separate waiver clause.
The choice of system is not indifferent where the counterparty is public. Arbitration administered by the Common Court offers an institutional framework, rapid appointment of arbitrators and scrutiny of the draft award, all of which reduce friction with an administration or a State owned company. That is the configuration in which a CCJA clause is most clearly justified.
5. The proceedings: time limit, supporting judge, arbitration objection
The first use of an arbitration agreement appears before any arbitration. Where the opponent seises a national court despite the clause, the court must decline jurisdiction (article 13). The objection must still be raised before any defence on the merits: raising it late amounts to waiver, and the error is frequent among litigants eager to show first that the claim is unfounded.
The six month arbitration period is short by international standards. It can be extended, by agreement of the parties or by decision of the competent judge, but the extension follows a formality that must be respected, failing which a debate on the validity of an award made after expiry will follow. A well drafted clause provides the extension mechanism, for instance a written agreement of counsel, rather than leaving the parties to negotiate it at the worst moment.
The judge of the State of the seat finally acts as supporting judge, to appoint an arbitrator where one is lacking, to decide a challenge or to extend the time limit. That is a further reason to choose the seat knowingly, since that is the court that will have to be approached urgently, with its own timelines and practices.
6. Two enforcement routes, and the same border
Under the Uniform Act, the award has res judicata effect as soon as it is made but may be enforced only by virtue of an enforcement decision of the competent court of the member State (article 30). That court must rule within a period not exceeding fifteen days (article 31), which puts OHADA law among the fastest on paper, practice varying between registries.
Under the auspices of the Common Court, awards have final res judicata effect in the territory of each member State, on the same footing as decisions of national courts, and may be enforced only by virtue of an enforcement decision that the Court alone has jurisdiction to make. Refusal is possible only in four cases: absence of an arbitration agreement or an agreement that is void or expired, disregard by the arbitrator of the mission, breach of due process, conflict with international public policy (OHADA Treaty, article 25).
Those two enforcement routes do not share the same geography, but they share the same limit. The national court’s decision is effective in its State. The Court’s decision is effective in the seventeen member States. Neither produces any effect in a third State, and France is one. A creditor intending to attach a Paris account will therefore, in both cases, need French enforcement.
There remains the case of enforcement in a third State other than France. The Uniform Act provides that awards made under rules other than its own are recognised in the member States on the conditions of the applicable international conventions (article 34), and the converse works through the New York Convention of 10 June 1958. The map of accessions is worth knowing before choosing the seat: Côte d’Ivoire acceded in 1991, Cameroon in 1988, Senegal in 1994, Benin in 1974, Burkina Faso in 1987, Mali in 1994, Niger in 1964, Gabon in 2006 and the Democratic Republic of the Congo in 2014, while Togo is not a party.
7. Two challenges: setting aside and contestation of validity
The principle is common to both systems: the award is subject to neither opposition, nor appeal, nor cassation, and only a specific challenge is open (article 25). Under the Uniform Act that challenge is the application to set aside, brought before the competent court of the member State where the tribunal sits. Its grounds are exhaustively listed: absence, nullity or expiry of the arbitration agreement, irregular composition of the tribunal, non compliance with the mission, breach of due process, conflict with international public policy, absence of reasons (article 26).
The time limit deserves to be read twice. The challenge is admissible as soon as the award is made and ceases to be admissible if it has not been brought within one month of service of the award bearing the enforcement order (article 27). Until that service has taken place, time does not run and the risk of annulment remains open. Serving the enforced award quickly is therefore a matter of strategy, not of formality.
Under the auspices of the Common Court, the challenge takes the form of a contestation of the validity of the award, brought before the Court itself, on grounds that follow the logic of the treaty. The arbitration rules further organise 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. Unity of jurisdiction is paid for in distance, but it avoids the lottery of national practices.
8. What it changes before the French judge
Before the French judge the distinction between the two systems almost entirely disappears. An award made in Abidjan under the Uniform Act and an award made under the auspices of the Common Court are both awards made abroad, subject to French international arbitration law. They are recognised or enforced in France if the party relying on them establishes their existence and if that recognition is not manifestly contrary to international public policy (code of civil procedure, article 1514).
Forced execution requires an enforcement order of the judicial court of Paris, obtained on application, without adversarial debate, on production of the original award and a copy of the arbitration agreement (article 1516). The debtor may appeal, but the Court of Appeal may refuse recognition only in the five cases of article 1520 (article 1525). Neither res judicata, nor reciprocity, nor the law applied to the merits is reviewed.
That regime is markedly more favourable than the one reserved for judgments of the national courts of member States, which fall under bilateral judicial cooperation conventions or, failing that, the general law of enforcement. That is why, from the standpoint of enforcement in France alone, an arbitration clause is worth more than a jurisdiction clause in a contract with a partner from the area.
Frequently asked questions
Can CCJA arbitration be chosen where neither party is established in an OHADA State
The treaty lays down an alternative condition. The Common Court’s arbitration procedure is available either where one of the parties is domiciled or habitually resident in a member State, or where the contract is performed wholly or partly in the territory of one or more member States (article 21). A contract between two European companies concerning a site in Cameroon therefore satisfies the second limb. A contract with no connection at all to the area falls outside the scope, and the clause will have to designate another institution.
What happens if the award is made after the six month period
The period runs from acceptance by the last arbitrator and is extended by agreement of the parties or by decision of the competent judge (article 12). An award made after expiry, without a proper extension, is exposed to an application to set aside based on the arbitrator’s mission. The remedy is simple and is applied during the proceedings: record each extension in writing, put it on the file, and never rely on a tacit agreement between counsel.
Can a national court hear the dispute despite the clause
No, if the objection is raised in time. The Uniform Act requires a court seised of a dispute covered by an arbitration agreement to decline jurisdiction (article 13). The objection must be raised before any defence on the merits, failing which it is deemed abandoned. The court retains jurisdiction for urgent interim and conservatory measures, which allows assets to be frozen while the tribunal is constituted, without giving up the benefit of the clause.
Can the Common Court modify the arbitrator’s award
It may propose modifications of pure form, and nothing else. Before signing a partial or final award, the arbitrator must submit the draft to the Court, which exercises at that stage a formal review designed to prevent defects liable to lead to annulment (article 24). The merits remain the arbitrator’s business alone. That mechanism adds a few weeks to the timetable and secures the award, which is of first interest to the party that will have to enforce it.
Must the seat of the arbitration be in a member State
It is not compulsory, it is a choice of regime. A seat in a member State triggers application of the Uniform Act (article 1) and entrusts any application to set aside to the court of that State. A seat in Paris places the arbitration under the French regime, where review is reduced to the five complaints of article 1520 of the code of civil procedure. Neither is better in itself, but one of the two must be chosen, and it must be chosen in the clause.