Doing Business in Ohada Member Countries on the basis of Which Laws








 
 

 

 

 

 

 

 

 

 









 
  • BUSINESS ON THE BASIS OF WHICH LAWS ? 
 
DOING BUSINESS ON THE BASIS OF WHICH LAWS ? 


It was notably recalled in the Preamble of the Treaty on the Harmonization of Business Law in Africa :

- that the setting up of a harmonized, simple, modern and adapted business law to enable an easier access to economic activities was a pre-requisite for the economic integration of these countries and 

- that arbitration was to be promoted as an instrument for the settlement of disputes arising from contracts. 

In addition, article 2 of the Treaty set up the scope of the harmonized law to be enacted by underlining that for the implementation of the Treaty, should be considered as falling within the definition of Business Law all the rules relating to company law, the traders'legal status, debt collection, securities and means of execution, the rules governing the rehabilitation of undertakings and insolvency law, arbitration law, labour law, accounting law, transportation ans sales law, as well as any other matter that the Council of Ministers would unanimously decide to include as falling within this definition, in conformity with the objective of the Treaty and the provisions of Article 8. 

Harmonized law presently entails the following matters : 

- general commercial law, 

- commercial company law,

- law on securities, 

- law on summary debt collection procedures and measures of execution, 

- insolvency law, 

- arbitration law. 

Several domestic laws previously in force have been repealed by these Uniform Acts and some have been maintained. A summarized table of the prevailing situation in this regard is presented hereunder. 
 

Uniform Act concerned 
Rules as to the repeal of previous laws 
Uniform Act relating to General Commercial Law 
Subject to the two exceptions mentioned hereunder, this Uniform Act does not entail any express provision in this regard but rather includes quite a few provisions on its scope : 

- Trade middlemen contracts : pursuant to article 143, the provisions of domestic law on agency shall continue to govern trade middlemen's contracts where this Uniform Act does not entail any other specific provision in this regard.

- Commercial sales : it is provided in artticle 205 that commercial sale contracts shall continue to be governed by ordinary law in addition to the provisions of this Uniform Act. 

Uniform Act relating to Commercial Companies and Economic group partnerships 
- Article 919 repealed any repugnant provision of domestic laws which however remained in force for a transitional period of 2 years as from the date of enforcement of this Uniform Act, as well as domestic laws relating to the setting up of articles of association, where member States so decided. 

- In compliance with articles 916, 917 and 918 of this Uniform Act, remained in force the domestic laws relating : 

. to companies governed by specific laws, 
. to the face value of shares and partnership rights issued by companies incorporated before the date of its enforcement, 
. and to founders'shares 

Uniform Act organizing Securities 
- Article 150 § 1 of this Uniform Act repealed any repugnant provision of previous laws in force.

- Moreover, the laws governing sureties in fluvial, maritime and air law which remained out of the scope of this Uniform Act were maintained in force by article 1 paragraph 2. 


Uniform Act organizing Insolvency and Liquidation proceedings 
 		 Article 257 of this Uniform Act repealed any repugnant provisions of domestic laws previously in force. 

Uniform Act organizing Summary Debt Collection Procedures and Measures of Execution 
 		 Repeal by Article 336 of all domestic laws relating to the matters dealt with in this Uniform Act. 
 

BUSINESS WITH WHICH SOLUTIONS WITH REGARD TO THE SETTLEMENT OF DISPUTES ? 

Article 13 of the Harmonization Treaty provides that litigation regarding the implementation of Uniform Acts is settled in the first instance and on appeal within the courts and tribunals of the Contracting States. 

N.B. By way of appeal, the Court rules on the decisions pronounced by the appeal courts in Ohada members States. 

Article 21 of the same Treaty : In applying an arbitration clause or an out of court settlement, any party to a contract may, either because it has its domicile or its usual residence in one of the Contracting States, or if the contract is enforced or to be enforced in its entirety or partially on the territory of one or several contracting States, refer a contract litigation to the arbitration procedure provided in this section. 

The Common Court of Justice and Arbitration does not itself settle such disagreements. It shall name and confirm the arbitrators, be informed of the progress of the proceedings, and examine decisions, in accordance with Article 24.


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