l’Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) Sixteen countries in West and Central Africa are parties to a treaty originally signed in 1993[1] creating a uniform system of business laws. There are eight OHADA statutes (uniform acts), the first of which became effective in 1998.[2] They cover business organizations from formation to dissolution, and through bankruptcy, arbitration and execution of judgments. The uniform acts concerning operations govern commercial and secured transactions, transport by road and accounting. The uniform acts are inspired by civil law, but have other sources as well. Institutions: Council of Ministers (legislature, composed of ministers of finance and of justice); Common Court of Justice and Arbitration (“CCJA”); Permanent Secretary (parliamentary-style executive); Regional High Judiciary School (offers courses on OHADA to selected judges and practitioners). Uniform acts automatically become part of national law. Litigation under OHADA starts in the national courts; the CCJA has ultimate authority and protects uniformity of interpretation. Members: West Africa: Benin, Burkina Faso, Côte d'Ivoire, Guinea, Guinea-Bissau, Mali, Niger, Senegal, Togo. Central Africa: Central African Republic, Chad, Cameroon, Comoros, Congo-Brazzaville, Equatorial Guinea, Gabon. Recent Developments: Operationalizing Business Law The World Bank’s influential “Doing Business” reports have been harsh to French-influenced business law.[3] There are arguments, including those submitted by economists connected to the Bank that the economic difficulties of many former French colonies are due more to the government they inherited than to the legal system. In the face of criticism, the OHADA system is maturing; this up-date is more about subtle changes, the setting of roots, than about any single development. 1. Description (a) Gradual Change OHADA’s articulated purpose 15 years ago was to facilitate foreign investment from the North into the region; the idea was that OHADA laws would reduce transaction costs for Northern donors because they would be familiar with the legal system. Interestingly, the lawyers in the member countries use it primarily to regulate private transactions between persons in one or more OHADA country. As a body of law, OHADA is developing, both through national courts and especially as a result of CCJA decisions. It is taught in the law schools; business people are increasingly aware of it, and it is generally recognized to be more accessible than the law it replaced which, for many of the countries, at least in part dated to the 19th century. A coterie of Anglophone lawyers from countries that neighbor the OHADA members is seeking to learn more about OHADA, in the first instance to facilitate trade. In addition, a trickle of interest is developing from major multinational corporations and economic advisers to Northern-country embassies and consulates, even if these institutions’ primary language is not French. Most recently, a new president of the CCJA and a new Permanent Secretary have been installed. (b) Proposed treaty amendment The treaty amendment adopted by the Council of Ministers in October 2005, would, among other changes, have added English, Portuguese and Spanish to French as working languages. Each of these four languages is an official language of at least one member state. The amendment would also have formally created a fifth institution composed of Heads of Government and Heads of State. Discussion OHADA is maturing. Its laws are putting down roots and becoming integrated transplants. Foreign direct investment continues to be important in the region, but the laws’ application to local business is increasingly a focus of both business people and government. Governments are making some changes in their institutions to facilitate at least optically the formation of businesses under OHADA law, and local jurists and business people are increasingly knowledgeable about OHADA law. The impact is regional as well as internal to each OHADA nation. The concerted effort to inform potential trading partners about OHADA, in particular the Anglophone powerhouses, Nigeria and Ghana, is an effort to promote regional development, rather than waiting exclusively for Northern—or, these days, South African—investment. Although the proposed treaty amendment’s addition of working languages is a logical necessity -- since there are four official languages within OHADA -- the effort is also designed in part to enhance trading with the Anglophone neighbors. The original amendment was not executed principally for technical reasons, but most of its substance, including the addition of languages, appears to be non-controversial. Claire Moore Dickerson Visiting Professor of Law and Sen. Breaux Chair in Business Law Tulane University Law School Footnotes: 1 Traité relatif à l'Harmonisation en Afrique du Droit des Affaires, Nov 1, 1997, 4 Journal Officiel [JO] OHADA 1, available at http:// www.ohada.com/traite.php. See generally, Claire Moore Dickerson, Harmonizing Business Laws in Africa: OHADA Calls the Tune, 44 COLUM. J. TRANSNAT’L L. 17 (2005). 2 Acte Uniforme relatif au Droit des Sociétés Commerciales et du Groupement d'Intérêt Economique, art. 908, adopted Apr. 17, 1997, 2 JO OHADA 1 (Oct. 1, 1997); Acte Uniforme relatif au Droit Commercial Général, adopted Apr. 17, 1997, 1 JO OHADA 1 (Oct. 1, 1997); Acte Uniforme portant Organisation des Suretés, adopted Apr. 17, 1997, 3 JO OHADA 1 (Oct. 1, 1997); Acte Uniforme portant Organisation des Procédures Simplifées de Recouvrement et des Voies d'Exécution, adopted Apr. 10, 1998, 6 JO OHADA 1 (July 1, 1998); Acte Uniforme portant Organisation des Procédures Collectives d'Apurement du Passif, adopted Apr. 10, 1998, 7 JO OHADA 1 (July 1, 1998); Acte Uniforme relatif au Droit de l'Arbitrage, adopted Mar. 11, 1999, 8 JO OHADA 1 (May 15, 1999); Acte Uniforme portant Organisation et Harmonisation des Compatibilités des Entreprises, adopted Feb. 22, 2000, 10 JO OHADA 1 (Nov. 20, 2000); Acte Uniforme relatif aux Contrats de Transport de Marchandises par Route, adopted Mar. 22, 2003, 13 JO OHADA 3 (July 31, 2003); Actes Uniformes, http://www.ohada.com/textes.php (last visited Oct. 13, 2007). 3 Available at www.doingbusiness.org |
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