THE
UNIFORM ACTS IN BRIEF THE IMPLICATIONS OF OHADA LAW IN THE UNDERTAKINGS' LEGAL ENVIRONMENT AT LARGE THE LEGAL RISKS RESULTING FROM THE ENFORCEMENT OF OHADA BUSINESS LAW |
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THE UNIFORM ACTS IN BRIEF |
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It was provided for in the Harmonization Treaty that Uniform Acts shall be adopted for the implementation of the common rules. Thus the following Uniform Acts have been adopted. |
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Uniform Act concerned |
The dates it was adopted
and enforced |
ITEMS DEALT WITH |
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Uniform Act relating to General Commercial Law | Adopted on April 17,1997 and enforced by derogation on January 1st, 1998. |
The traders' status, the Trade and Personal Property Credit Register, commercial leases, business, trade middlemen, commercial sales. |
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Uniform Act relating to Commercial Companies and Economic Group Partnerships | Adopted on April 17,1997 and enforced by derogation on January 1st, 1998. | - Provisions governing all companies (relating to their incorporation,functionning, civil liability of company executives, legal links between companies, transformation, merger, scission, dissolution, liquidation, nullity, publication formalities). - Provisions governing each type of company. - Penal provisions. |
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Uniform Act organizing Securities | Adopted on April 17,1997 and enforced by derogation on January 1st, 1998. | - Surety-bonds - Letters of guarantee - Possessory lien. - Pledges. - Pledging without dispossession : . pledging of partnership rights and transferable securities, . pledging of business, . pledging of professional equipment and motor vehicles, . pledging of stocks of raw materials and goods. - General liens and special liens. - Mortgages. - Distribution and classification of securities. |
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Uniform Act organizing Sum-mary Debt Col-lection Procedu-res and Measures of Execution | Adopted on April 10, 1998 and enforced 90 days after its adoption (art. 9 of the Harmonization Treaty). | - Summary debt collection proceedings, (injunction to pay, injunction to secure the delivery or restitution of a specific personal property). - Measures of execution (sequestration, seizure for sale, seizure for apprehension of the debtor's debts, attachment and transfer of earnings, seizure of partnership rights and transferable securities, attachment of real property). - Distribution of the proceeds of sales. |
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Uniform Act organizing Insolvency and Liquidation Proceedings | Adopted on April 4,1998 and enforced by derogation on January 1st,1999. | - Voluntary agreement. - Administration of insolvent debtors' affairs under the supervision of a court. - Liquidation of property. - Personal bankruptcy and discharge of bankruptcy. - Bankruptcy and other offences. - International insolvency proceedings. |
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Uniform Act on Arbitration Law | Adopted on June 11,1999 and enforced 90 days after its adoption (art. 9 of the Harmonization Treaty). | - Constitution of the arbitration court. - The arbitral hearing. - The award. - Petition against the award. - Recognition and enforcement of awards. |
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Uniform
Act organizing and harmonizing the undertaking's accounts in Ohada Member
Countries![]() |
Adopted on March 23 and 24, 2000. Enforced : · for the undertakings' personal accounts, as from January 1, 2001 : transactions and accounts related to the financial year under way at this date; · for consolidated and combined accounts, as from January 1, 2002 : transactions and accounts related to the financial year under way at this date |
General provisions CONSOLIDATED AND COMBINED ACCOUNTS Consolidated accounts PENAL PROVISIONS FINAL PROVISIONS |
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Uniform Act relating to the transportation of goods by road |
Adopted on March 20, 21 et 22, 2003. Enforced in January 2004. |
IMPLEMENTATION OF THE TRANSPORT AGREEMENT CONTENTIOUS MATTERS |
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The implications for the undertakings at large | The specific implications for some sectors | |||||||||
The implications for the undertakings at large |
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- the legal rules governing their debts : . in the field of commercial sales and trade middlemen contracts, |
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The specific implications for some sectors |
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Besides what is recalled above generally applicable to undertakingsat large, the Ohada business law promulgated has specific implications in some sectors : - those where commercial leases are an important
factor in the undertakings' activities (enterprises involved
in land and real estate-related activities and similar sectors), - those where business management leases are
much used, - those where trade middlemen contracts are much used (commercial channels and others). The salient points of the Ohada new the legal environment are summarized
hereafter in each sector : |
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Sectors where commercial
leases are an important factor in the undertakings' activities / The major points of the new legal environment concerned |
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- enables the parties to freely chose between leases of specified and unspecified duration, - but also includes a certain number of provisions considered as matters of law and order which shall be complied with by the parties, under penalty of seeing the lease being declared nul and void. These provisions shall apply : - to the main and secondary premises of buildings rented for commercial, industrial, handicraft or professional purposes, - and to non built-on rented estate entailing constructions built for the same purposes either before or after the conclusion of the lease, where such constructions were built or used with the consent and knowledge of the owner. These provisions also govern the leases in which one of the signatories (lessor or lessee) is an industrial or commercial entity governed by public law or a public corporation. Any
trader who may prove that he has been running for two years an activity
authorized by the lease, with the owner's consent, is entitled to the
renewal of his/her lease under the terms and conditions laid down in
the Uniform Act. |
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Sectors where business management
leases are much used / The major points of the new legal environment concerned |
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Businesses may be run : - directly by a trader or a commercial company, - or in the framework of a management lease which is an agreement by which the owner of a business hands it over by contract to a manager, a natural person or a coporate body, for the latter to run the business at his/her own risks (art. 106). The manager must have the status of trader and be registered in the Trade and Personal Property Credit Register (art. 107). The owner can grant such a contract only if : - he/she is a trader registered in the Trade and Personal Property Credit Register since at least 2 years, or if he/she has performed the duties of manager or of commercial or technical manager in a company for an equivalent duration, or - he/she has
operated the business leased as trader for at least one year.
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Sectors where the securities
relating to debts are a key factor in the undertakings' activities / |
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Ohada Law thoroughly updated the laws on
securities. <> Modifications of the rules governing concurrence bonds. -> Among the modifications in the rules governing surety bonds -- More stringent rules have been laid down to govern surety bonds, notably to protect the guarantors' consent: . as a general requirement (ex: the maximum amount guaranteed, including the accessories of the debt, shall be indicated in figures and letters, under penalty of seeing the surety bond being declared nul and void) . or as a specific requirement (as the consent of the illiterate guarantors) (article 4). -- Surety bonds are henceforth joint and several unless otherwise expressly provided for in the parties' agreement (article 10). -- The creditor in favour of whom a surety bond was issued is henceforth obliged to provide the guarantor with some informations on the debtor under penalty of losing his recourse against thesaid guarantor. -> The
inclusion of autonomous guarantees (letters of guaranty). Letters
of guaranty of international standards have been introduced. The requirements
as to their issuing are rather strict (natural persons are prohibited
to issue such guaranties). The rules governing corporeal securities, whether relating to personalty or immovable property, have been thoroughly updated. -> Among the modifications in corporeal securities relating to personalty are : - the inclusion of the possessory lien (before provided for in specific, scattered laws), as a security of general scope which is to be enforced pursuant to similar rules as the ones governing pledges ; - the updating of the terms and conditions relating to the pledging of some intangible properties (example : the pledging of claims governed by precise rules enabling the pledgee to enforce the pledge in the best interests of all the parties concerned) ; - the inclusion of additional pledges (such as, on the one hand the ones relating to shares, on the other hand pledges of stocks), to standard pledges without dispossession (pledges of professional equipment and motor vehicles, of business). It is to be emphasized that the numerous warrants existing previously (farm produce warrants, petroleum warrants etc.) have been replace by a single warrantage scheme in the framework of which pledging is facilitated by the issuing of an endorsable note recording the claim and the security. Moreover, there has been an important streamlining and updating of the liens, thus : - the list of general liens existing in the Civil Code has been streamlined and their number reduced, and general liens securing very important amounts (Treasury, Customs, Social Security institutions) must henceforth be registered in the Trade and Personal Property Credit Register if they are to be demurrable to third parties; - the list of special liens has also been streamlined (those no longer in use have been eliminated) and in the event of conflict between these special liens over the same personalty, preference is given to the first to levy a distress. -> Among the modifications in the coporeal securities relating to immovable property : the repeal of the rule according to which there was not time-limit for the validity of mortage registration. -> Among the modifications in the distribution and classification of securities : the classification of securities have been rationalized with on the one hand securities related to immovable property and on the other hand those relating to personalty. |
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Sectors where trade middlemen
contracts are much used / The major points of the new legal environment concerned |
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Are concerned the agreements with comission agents, brokers and commercial agents. The scope of Ohada Law on trade middlemen contracts is rather large since it includes not only the conclusion of contracts by middlemen, but also any transaction carried out by the latter in view of concluding or performing thesaid contract , as long as: - the middleman is registered in the Trade and Personal Property Credit Register of one of Ohada member State or - he acts in the territory of one of these States, or - rules of private international law allow for the implementation of the Uniform Act.. With regard
to the rules to govern trade middlemen's contracts, the Ohada Uniform
Act has an extensive approach taking into account at the same time its
provisions, the standard rules of agency entailed in domestic laws (which
were maintained in force in this regard) and the professional practises
in the field concerned. |
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- those in connection with the companies' operation and activities, |
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