* This paper was prepared for the Conference on the
Arbitration of International Trade and Investment
Disputes in Africa held in Johannesburg, South Africa
from 5-7 March 1997.
Introduction
A lot of preconceived
ideas have been propagated concerning arbitration
in Africa. Indeed, for many practitioners and arbitrators
from Western Countries, arbitration in this continent
is more or less, terra incognita.
It is true that while
arbitration was developing and expanding fast all
over the world, Africa was being left behind in this
race. In addition, the notable dearth of literature
on arbitration in this area cannot be denied 1 .
Currently, significant
steps are being taken regarding the laws and practice
of arbitration in Africa. On this basis, one must
certainly admit that now the time is ripe for arbitration
to expand in this part of the world.
The purpose of this paper
is to present the evolution of the arbitration laws
and practices in francophone Africa since anglophone
Africa has already been very well covered 2 .
African laws relating
to arbitration comprise two main sets of rules. The
first relates to the general rules of law and the
second to investment law. Both have domestic and international
sources.
Investment law contains
a whole range of legal guarantees intended to attract
investments. Included among these legal guarantees
is arbitration. Thus "arbitration under the general
rules of law" means arbitration not involving
matters of investment law 3 , which
is itself an important but different issue that will
not be considered here.
In order to locate ourselves
within the evolution of arbitration under the "general
rules of law" in francophone Africa, it may be
useful to consider the early sixties as the focal
point.
The early sixties coincided
with the accession to political independence of most
of Africa's sub-Saharan states. This time is also
considered as the starting point of expansion of international
commercial arbitration 4 .
I - The past : the background
of francophone Africa's legal systems with regards
to the "Process of legislative extension"
This rule is particular
to the French colonial system. It is established by
the principle of "legislative speciality"
(a), which needs to be illustrated here with some
examples (b). After which we will see that some of
the difficulties with which francophone African countries
have been confronted to date, especially in the matter
of arbitration legislation, originate from that principle
(c).
a) The
definition of the principle "legislative speciality"
The principle of "legislative speciality"
has a history that goes back a long way. Following
the Revolution of 1789, the French authorities established
that "the status of the colonies are determined
by special orders" 5 .
From this time onwards,
the laws applicable in France's overseas territories
were those enacted in the Metropole and extended to
these territories by a special enactment of the colonial
legislator 6 .
b) The
application of the principle of "legislative
speciality" in the matter of arbitration : some
examples.
The impact of this principle in the matter of arbitration,
can be examined in the light of the Civil Procedure
(i), the Commercial Law (ii) and the Administrative
Law (iii).
i)
The Civil Procedure
As far as arbitration was concerned, although the
French Code of Civil Procedure was extended to francophone
Africa 7 , surprisingly, the provisions
related to arbitration in this Code were not applicable.
This contrasts with
the English African colonies, where the Arbitration
Act of England was deemed applicable 8 . The example of Kenya is a good illustration of
the difference between the legal policies of the
French and English colonial authorities.
As pointed out by Mr.
Justice Coudrey OBE 9 , the Order
in Council of 1897 which established the Protectorate
of Kenya provided that the Common Law, Doctrines
of Equity, and Statutes of General Application in
force in England on the 12th August 1897 should
apply in Kenya. This meant that from the beginning,
The Arbitration Act of 1889 applied in this country.
This raises the important
issue of why the French colonial authorities did
not extend the arbitration legislation to their
colonies? Of course such a question is not easy
to answer.
One acceptable hypothesis
is that during the nineteenth century, arbitration
as a judicial means of settlement of disputes on
the legal basis of the parties's agreement, did
not fit in with the French colonial policy known
as "direct rule", as opposed to the "indirect
rule" of the English colonial system 10 .
The French authorities
were more dictatorial in administrating their territories.
Their preoccupation at that time was to keep tight
control on the resolution of disputes in their territories 11 .
The lower judicial power
was delegated to the indigenous authorities but
at the same time, any powers of arbitration which
might interfere with the judicial organization mentioned
above were removed from the potential users of the
Code of Civil Procedure 12 .
Therefore, the absence
of law concerning arbitration within the legal system
of the French colonies soon after independence originates
from this French colonial policy.
ii) The Commercial
Law
The French Code of Commerce was
extended to the former French territories of Western
(FWA) in 1907 and Equatorial Africa (FEA) in 1910 13 . Also applicable to the former
territories was the law of 31st December 1925 which
completed the provisions of the Code of Commerce
and declares arbitration agreement valid in commercial
matters 14.
It is noteworthy that
this law of December 31st 1925, was enacted after
the Geneva Convention of 1923 on arbitration agreement 15, to which France was party
in the context of what may be considered as a certain
"openness" to arbitration. This "openness",
benefited the French colonies because this law was
declared applicable to them.
But paradoxically, this
extension of the law of 31st December 1925 created
an abnormal situation in the legal sphere in that
it produced the existence of a law admitting the
validity of arbitration agreements in commercial
matters on the one hand, while on the other hand,
the rules of procedure enabling the arbitration
process to work were absent.
iii)
The Administrative Law
The Administrative Law represents one important
particular of the French legal system compared to
the English Common Law. The French Administrative
Law's prohibition of arbitration as a means of settlement
of disputes for administrative bodies was extended
to the colonies.
To the best of our knowledge,
the only exception concerns Burkina Faso (ex Upper
Volta), where a law of 17th April 1906 authorises
arbitration for settlement of disputes in the matter
of public delivery or construction 16 .
c) The limitations of
"legislative speciality" with regards to
the difficulties raised
The legislation in the Metropole was not extended
systematically to all the territories.
Furthermore, when it occurred
(which was not always the case as in the matter of
arbitration in the Code of Civil Procedure), the extension
of the French law in the colonies, was only effective
from a precise date, sometimes after the original
legislation was enacted. These extensions became the
starting point of the evolution of the African legal
system.
Any modification made
in the law of the Metropole was only extended to the
African law if the modification was anticipated, which
was rarely the case. This is the reason why African
countries lived, and are still living in a state of
law that is out of date in the "exporting country".
This situation added to
the above mentioned legal vacuum in arbitration, results
in a damaging legal insecurity for business and trade
transactions, which African judges and legislators
are trying to deal with.
II- The Present : current
situation of arbitration laws in francophone Africa
The current state of arbitration
of "general nature" (as opposed to arbitration
of "investment nature") concerns two main
sources, domestic (a) and international (b).
a) Domestic
sources of arbitration
Following independence in the 1960's, the majority
of the new francophone African states kept the status
quo of their legal inheritance. As a result, no arbitration
laws exist in their legal systems to date (i). On
the other hand, among the new African states which
filled the vacuum concerning arbitration legislation,
some enacted laws related to domestic arbitration
(ii) while very few of them have promulgated laws
on domestic and international arbitration (iii). In
all cases, arbitration laws in force in francophone
Africa whether domestic or international, show that
"the basic connection with the parent legal system
remains" 17 .
(i)
African states with no arbitration laws
These are Benin 18, Burkina Faso,
Central African Republic, Gabon, Guinea, Mali, Mauritania
and Niger 19. The former French
law on arbitration not having been extended to these
countries, means that there is a total legislative
vacuum.
However, as already
mentioned above, the Law of December 31st 1925 which
authorises arbitration clauses in commercial matters
is applicable.
(ii)
African states with domestic arbitration laws
Contrary to what happened in the countries where
the status quo was maintained, soon after their
independence, many French speaking countries enacted
legislation related to domestic arbitration. It
would be interesting to review the situation in
some of the countries concerned.
-
Cameroon
The legal system of this country is influenced both
by the French and the English law 20.
Arbitration is governed by articles of the Code
of Civil and Commercial Procedure 21 which are very close to the former French law on
arbitration. It is to be noted that the previously
mentioned law of 31st March 1925 is also applicable
in Cameroon.
-
Congo
The Code of Civil, Commercial, Administrative and
Financial Procedure 22 of Congo
includes only one article governing arbitration.
Indeed, under article 310 paragraph 2 of said Code,
a foreign award can be granted exequatur and enforced
in Congo although the arbitration agreement and
the arbitral proceedings are not regulated.
One can deduce that
there is a tacit acceptance of the arbitration agreement
in the Congolese law. Although it seems that Congo
is not yet party to the New York Convention on recognition
and enforcement of foreign awards, one can conclude
that the solution adopted by the Congolese legislator
is concise and effective as they have not thought
it necessary to enact other provisions to enable
international arbitration.
The international validity
of the arbitration agreement, derived from the well
established general legal principles of separability
and competence-competence on the one hand, and the
domestic recognition of the foreign award on the
other hand, seem sufficient to make arbitration
effective in the Congolese legal system.
-
Senegal
This country was one of the most important territories
in the French colonial policy in Sub-Saharan Africa 23. Arbitration is currently regulated
in Senegal, in the Code of Civil Procedure promulgated
in 1964 24 . These provisions
are quite similar to those of Cameroon and therefore,
to the former Code of Civil Procedure of France.
The law of December 31st 1925 is still applicable
in Senegal.
However a new arbitration
bill has already been drafted and submitted to the
legislative authorities. This law will probably
be enacted in 1998.
-
Chad
In this country, arbitration is governed by Ordinance
of 28th July 1967, related to the Code of Civil
Procedure 25. It is influenced
by former French arbitration rules, like the other
former French colonies. One should bear in mind
that the law of 31st December 1925 is also applicable
in this country.
-
Democratic Republic of Congo (Ex - Zaire)
Although it is a francophone country, the Democratic
Republic of Congo (Ex Zaire), is not a typical French
colony. This country was a former colony of Belgium,
which is also a French speaking country. Arbitration
is regulated in The Democratic Republic of Congo 26 by articles 159 to 194 of the
judicial Code of 1960 27.
(iii)
African States with international arbitration laws
To date, only three countries are concerned : Djibouti,
Ivory Coast and Togo 28.
-
Djibouti
The Djiboutian Code of International Commercial
arbitration which was the very first African legislation
on the matter of international arbitration was enacted
in 1984 29 .
It is influenced by
the French decree of May 12th 1981 on international
arbitration. The definition of international commercial
arbitration and the arbitral proceedings are organized
on the same legal basis. It is also in accordance
with the modern instruments on international arbitration
such as the Geneva Convention of 1961 and the United
Nation Commission for International Trade Law (UNCITRAL)
Model Law. It is important to note that The Federation
of the Chambers of Commerce of the member states
of the Preferential Trade Area for Eastern and Southern
African States ("PTA") 30 decided in 1987 to create a Regional Arbitration
Center based in Djibouti. As a result, the Djiboutian
Code may be of considerable importance for arbitration
in the region during the coming years.
-
Ivory Coast
The Code of Civil, Commercial and Administrative
Procedure of Ivory Coast of 1972 31 does not regulate arbitration. Thus, when the tribunals
of this country were to decide on the issue of the
validity of the arbitration agreement, during the
late eighties, they faced a serious obstacle. In
the presence of contradictory decisions made by
the lower courts, the chambers of the Supreme Court
gathered to decide on the issue, which led to a
decision of April 4th 1989 32 . According to this decision, the arbitration agreement
is valid in Ivory Coast under the law of December
31st 1925.
In the light of the
above the legislative authorities realised that
the time had come to fill the void in the area of
arbitration in the country. This is why the law
of August 9th 1993 related to arbitration was passed.
The particular of this
law is that it is nearly entirely based on the French
decrees of 1980 on domestic arbitration and 1981
on international arbitration 33 .
-
Togo
This country has two sets of rules related to arbitration.
The first ones are subject to the decree of March
15th 1982 34 also influenced by
the former French Code of Civil Procedure. The second
are regulated by the law of 28th November 1989 which
creates a Court of International Arbitration on
the model of the ICC Court of International Arbitration,
in order to promote international arbitration in
Togo 35 . To date, no records
on arbitration proceedings administered in Togo
under the auspices of this Center have been brought
to my attention.
b) International
sources of arbitration
These concern both bilateral accords (i) and multilateral
conventions (ii).
(i)
Bilateral accords
Following the independence of the early sixties,
France signed a great number of accords with its
former colonies. They relate to co-operation in
the field of justice and the enforcement in one
state of judgements handed down in another state.
They also contain special provisions regarding the
recognition and enforcement of awards made in one
country and "imported" into the contracting
country 36 .
Although very useful
in practice, these accords are not specific to arbitration,
as they are generally limited to reference to provisions
of the New York Convention.
(ii)
Multilateral conventions
It will be sufficient to mention The New York Convention
of 10th June 1958 and the European Convention on
International Arbitration of April 21st 1961.
-
The New York Convention of 10th June 1958
It has been notable success in Francophone Africa 37. As a consequence, the Geneva
protocols of September 24th 1923 and September 26th
1927, ratified by France and applicable to its former
colonies are now of limited interest.
-
The Convention on International Arbitration of 21st
April 1961
This Convention was drafted under the auspices of
the United Nations Commission for Europe and concerned
European East-West trade. Hence, in principle, the
African countries are not covered. However, I should
point out that Burkina Faso adhered to the Geneva
Convention on January 26th 1965 38.
III
- The future : The OHADA Treaty
As a consequence of what has been mentioned above,
one can see that the laws in force in Francophone
Africa are not harmonised. This situation causes serious
harm to regional policies for trade and investment
in the former French colonies 39 .
Thus in 1963, the Ministers
of Justice of the countries concerned aimed to harmonise
the legal systems they had inherited from the colonial
period. This would make their legal systems more coherent
in order to facilitate their political and economic
co-operation 40. Therefore, in October
1992 in Libreville, (Gabon), the Heads of States of
the Franc Zone approved the project of a Treaty of
Harmonisation of Business Laws. On October 17th 1993,
the draft Treaty for Harmonisation of Business Laws
in Africa, was signed by fourteen member states, and
is already in force.
The Treaty is open to
membership of other African countries and also to
countries outside Africa 41.
Article 3 of the Treaty
creates an Organisation for Harmonisation of Business
Laws so called "OHADA", composed of a Counsel
of Ministers and a "Joint Court of Justice and
Arbitration" (JCJA) which will be in charge of
the realization of the goals of the Treaty. The legislative
texts, termed "Uniform Acts" 42,
which will be directly applicable and mandatory in
the Member States "notwithstanding any prior
or subsequent domestic provision", are the principal
means of realizing the objectives fixed in the Treaty.
The "OHADA"
Treaty, attributes great importance to arbitration 43 and intends to set out original
rules in this matter. But to date, the "Uniform
Act" on Arbitration has not yet been drafted.
It seems important to
emphasize the role of the JCJA 44 which has power of adjudication in the issues of interpretation
of the Treaty and also in judicial and arbitration
matters.
Concerning this second
power, the JCJA does not decide the dispute itself.
It nominates or confirms arbitrators, has an overview
on the procedure and reviews the draft awards. The
JCJA also has power to grant exequatur to the final
award.
In many aspects concerning
arbitration, the organisation and powers the JCJA
seem similar to the China International Economic and
Trade Arbitration Commission or "CIETAC",
under the auspices of which "foreign-related"
arbitration is administered in China since 1995 45.
It is noteworthy that
the major concern of the Draftsmen of the OHADA Treaty
was to secure the efficiency of arbitration agreements
and awards. In this respect, they found unnecessary
to provide for grounds for vacating arbitral awards,
contrary to widespread understanding elsewhere 46.
This new African System
is original and audacious in that it has restricted
recourse to the JCJA against an arbitral award only
at the stage of recognition and enforcement.
CONCLUSION
As we can see, arbitration
in Africa must not be considered as terra incognita,
although currently, international arbitration is only
incorporated into the laws of three Francophone countries
and in the "OHADA" Treaty.
Two other countries, Benin
and Senegal are preparing to enact new laws on domestic
and international arbitration.
However, in general, the
legislations in force in the region have no "African
distinctness". They are very similar to the French
system that they are based on, and The UNCITRAL Model
Law had no significant impact in francophone Africa,
to date.
The expansion of international
commercial arbitration in these countries will depend
on the enactment of modern legislations and the adhesion
to the New York Convention of 1958.
In addition to this, the
creation of efficient Arbitration Centers - the JCJA
system still has to prove itself - and the training
of African lawyers must not be neglected.
Footnotes
1 See
Tiewul S.A. and Tsegah F. "Arbitration and the
settlement of commercial disputes : a selective survey
of African practice", The International and Comparative
Law Quarterly, July 1975, p. 393.
2
See inter alia, papers presented by Judge Austin NE
Amissah (Ghana), Prince Bola Ajibola (Nigeria), Stephen
Kokerai (Namibia/Botswana), Geoffrey WM Kiryabwire
(Uganda), Prof David Butler (South Africa), Ian Donovan
(Zimbabwe) at the Resolution of Trade and Investments
Dispute conference held in Johannesburg from 5-7 March
1997. Adde "Arbitration in Africa", The
LCIA and Kluwer Law International, 1996.
3 On
the issue of arbitration involving matters of investment
law, see Roland Amoussou-Guenou "International
Commercial Arbitration in Sub-Saharan Africa : Laws
and Practice", the ICC International Court of
Arbitration Bulletin, Vol. 7/1 n°1, p. 63, and
the footnotes...
4 See
Bruno Oppetit "Philosophy of International Commercial
Arbitration", Journal Of International Law (JDI)
1993, p. 811 and seq...
5 See
Claude Lussan, "Législation de sociétés
dans les territoires d'Outre-mer et dans les territoires
associés (A.O.F. - A.E.F. - Madagascar - Togo
- Cameroun), A.I.D.E., Copyright by Claude Lussan,
1953, pp. 20 & seq. This principle was officially
established by the Senatus-Consult (which is the denomination
of the decisions of the Senate under the first and
second French Empire) of May 3rd 1854. See also François
Luchaire in the "Manuel de droit d'Outre-mer",
Paris, 1949. Adde "Quelles sont les lois applicables
de plein droit ?", D. 1950, Chr. p. 135.
6 For
example, the Former Code of Civil procedure in force
in France since 1807 was extended to The West and
Central African colonies by Decree of 15th May 1889
(see L.A 1891, p. 39, J.CL Outre-mer, VI., Proc.,
Introduction). This rule has been reaffirmed by the
French Supreme Court. See Cass. Ch. Réunies
29th April 1959, Bull. civ. 1959, n° 4p. 3 (P.G.
Yaoundé c/ Fende) ; Bull. Civ. 1959, n°
3, p. 2 (P.G. Yaoundé c/ Malika).
7 See
Decree of 15th May 1889.
8
See A. Allot, "Judicial and legal system in Africa",
London-Butterworths, 1962; J. Vanderlinden, "Les
systèmes juridiques africains", PUF, p.32.
9 Mr.
Justice Coudrey OBE, "Arbitation in Kenya",
paper presented at the Inaugural Conference of the
Pan-African Council of the London Court of International
Arbitration (LCIA), Nairobi, Kenya, 7- 8th December
1994, p. 1.
10 See A.J. Van Den Berg "Etude comparative du droit
de l'arbitrage commercial international dans les pays
de Common Law", Doctorate thesis in law, Aix,
1977. Adde T. Hutchison "Africa and law. Developing
legal systems in African Commonwealth nations",
Madison, University of Wisconsin Press, 1968.
11 See J.P. Musseron, "Le pouvoir et la justice
en Afrique francophone et à Madagascar",
Paris, Pedone 1966, pp. 23 & seq ; Koffi Amega
"Dix ans de droit en Afrique", Penant 1972,
pp. 285 & seq.
12 See René Degni Segui "Codification et
Unification du droit en Afrique francophone",
Rev. Jur. et Pol. d' Outre mer, 1985, p. 285.
13 See decrees of 6th August 1907 and of 15th
January 1910, "Legal Encyclopaedia of Black Africa",
Les Nouvelles Editions africaines; ISTRA, 1982, part
I, législation.
14 See Decree n° 54-325 of 16th march 1954, Recueil
annoté des textes de procédure civile
et commerciale applicables en Afrique occidentale
française de Gaston Jean Bouvenet, Paris, ed.
de l'Union Française, 1954.
15 See Lampue, "L'application des Traités
dans les territoires et départments d'Outre
mer", AFDI., 1960, p. 191.
16 See Alain Bockel "Les contrats administratifs
: données générales, le problème
de l'arbitrage", Encyclopédie juridique
de l'Afrique, p. 265.
17 This expression applies also to the African countries
of English influence. See A. Allot, "Judicial
and legal system in Africa", op. cit, p. 54.
18 Information from Benin indicates that the Beninese
authorities are preparing to pass a domestic and international
arbitration bill.
19 For more details on these countries, see Roland Amoussou-Guenou
the ICC International Court of Arbitration Bulletin,
op. cit p. 64.
20 See Wendy Dorman, "Cameroon", World Arbitration
Reporter Issue 0 (1986) p. 1081.
21 See articles 576 to 601 (Book II part II)
22 Law n° 51/83 of 21st April 1983
23 Dakar was the capital of the French empire in Black
Africa.
24 See Book III, title I (arbitrations), articles 795
to 820
25 See articles 370 to 383
26 See articles 159 to 194.
27 See Decree of March 7th 1960, updated on July 30th
1985.
28 Draft arbitration Bills are currently being
prepared in Benin and Senegal.
29 See Law of 13 February 1984, Rev. arb. 1984,
p. 533 & seq. commented by Yves Derains.
30 The PTA was created on 21st December 1981 and
came into force on September 30th 1982.
31 See Law n° 72 833 of 21st December 1972, Official
Gazette (J.O.R.C.I) of 5 February 1973.
32 See Talal Massi v/ Omais, April 4th 1989, Rev. arb.
1989, p. 530, commented on by Laurence Idot
33 Law n° 93-671, Official Gazette (J.O.R.C.I.) of
September 14th 1993.
34 See articles 275 to 290 of the Code of Civil Procedure.
35 See Law n° 89-31 of November 28th 1989, instituting
an Arbitration Court (J.O.R.T. of January 10th 1990).
36 See Ministry of Foreign Affairs, "Liste des Traités
et Accords de la France en Vigueur ....", Direction
des Archives et de la Documentation , Conservation
des Traités.
37 Cf. List of contracting states, Multilateral Treaties,
UN Secretariat General, vol 330, p.3
38 Cf. list of signatory states, Multilateral Treaties,
UN S ecretariat General, doc. I ONU XX 557, p. 744.
39 See Akimuni, A. M., "A plea for harmonisation
of African investment laws", African Law Journal
1975, p. 134 & seq.
40 See Mr President Keba Mbaye, in "Harmonisation
of Business law in the Franc Zone ". An experience
of judicial integration in Africa. Bulletin of the
Institut International de Droit d'Expression et d'Inspiration
Françaises.
41 See article 53 of the Treaty.
42 See article 5 of the Treaty.
43 See articles 21 to 26.
44 See Aboubacar Fall, "Harmonisation of
Commercial Law in the Franc Zone", International
Business Lawyer, February 1995, vol. 23 n° 2 p.
82; Pascal Agboyibor "Recent Developments in
the Planned Harmonization of Business Law in Africa",
International Business Law Journal, 1996, n° 3,
p. 30 ; Roland Amoussou- Guenou "Arbitration
Pursuant to the Treaty For Harmonization For African
Business Law", International Business Law Journal,
1996, n° 3, p.321.
45 See Sally A. Harpole, "International Arbitration
in the People's Republic of China under the New Arbitratin
Law", The ICC International Court of Arbitration
Bulletin, Vol. 6/N°1, May 1995, p. 19.
46 See inter alia sections 66 and 67 of England Arbitration
Act 1996, article 1504 of the French New Code of Civil
Procedure, article 34 of the UNCITRAL Model Law.
