Author

Ms Agnès Bizard

Senior Associate, International Arbitration - King & Spalding

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CCJA

I. Definition

1.

The Common Court of Justice and Arbitration (“CCJA”) is part of the legal system of the Organization for the Harmonisation of Business Law in Africa (“OHADA”).1 It was created by the Treaty on the Harmonization of Business Law in Africa (“OHADA Treaty”) in 1993.2 It is based in Abidjan (Ivory Coast).

II. CCJA's roles

2.

The CCJA is both an arbitration institution with its own set of arbitration rules3 and, unlike any other arbitral institution, a supranational Supreme Court with final jurisdiction over all matters within the scope of OHADA legislation.4

A. CCJA as a supranational court

3.

As a supranational court, the CCJA Court is currently composed of thirteen judges, elected by the OHADA Council of Ministers for a non-renewable term of seven years.5

4.

It ensures the uniform interpretation and application of OHADA legislation. Its jurisdiction includes reviewing draft OHADA legislation, hearing appeals on OHADA laws from national courts and giving advisory opinions to OHADA Council of Ministers, Member States and national courts on OHADA related cases (Art. 14 of the OHADA Treaty).6 

5.

The CCJA Court also intervenes with respect to certain aspects of CCJA arbitration (enforcement of, and recourse against, awards).

B. CCJA as an arbitration institution

6.

As an arbitration institution, the CCJA is supervised by the Secretary General under the direction of the President of the CCJA Court (acting as President of the arbitration institution).7 It seats either in plenary session or reduced panels, composed of CCJA judges.

7.

The CCJA administers arbitration proceedings in accordance with the OHADA Treaty and the Arbitration Rules of the Common Court of Justice and Arbitration (“CCJA Rules”).8

8.

The CCJA Rules were enacted on 11 March 1999, entered into force on 10 April 1999, and were strongly inspired by the 1998 International Chamber of Commerce (ICC) Rules of Arbitration.9 The CCJA Rules were revised on 23 November 2017 and the revision entered into force on 15 March 2018.10

9.

CCJA Rules apply if at least one party has its usual place of residence in an OHADA Member State or if the contract is wholly or partially performed in the OHADA territory.11

10.

In addition to the CCJA Rules, the OHADA framework offers a choice with another, distinct, arbitration regime, not administered by the CCJA : the Uniform Act on Arbitration (“UAA”), which governs both domestic and international ad hoc arbitration proceedings and applies when the seat of the arbitration is in an OHADA Member State.12

III. Similarities and distinctive features of CCJA arbitration

A. Jurisdiction with respect to investment cases

11.

Article 2.1 of the 2018 CCJA Rules explicitly provides that the CCJA is empowered to administer investment arbitration matters.13 This is a clarification rather than a novelty, since the CCJA could administer investment arbitration prior to the 2018 reform of the CCJA Rules.

B. No emergency and expedited procedure 

12.

Unlike the ICC Rules of Arbitration,14 CCJA Rules do not provide for emergency arbitrators and expedited procedure.

13.

However, Article 10-1 of the CCJA Rules provides that, as long as the tribunal is not yet constituted or for urgent matters, the parties may submit a request for interim relief to a competent domestic court.15

C. Preliminary meeting and minutes

14.

The CCJA Rules provide for mechanisms similar in many respects to ICC Rules of Arbitration case management conferences and terms of reference.16

15.

Pursuant to Article 15, the tribunal must convene a preliminary meeting within forty-five days of the date on which the file has been transmitted to it. Minutes of this meeting include:

  • description of the parties’ respective claims (which will serve as the yardstick for the submission of new claims, Article 18);
  • particulars of the applicable procedural rules; and
  • a provisional timetable.

D. Scrutiny of the award

16.

Similarly to ICC practice,17 CCJA Rules at Article 23 provide for the formal scrutiny of decisions on jurisdiction, partial and final awards, by the Court.18

E. Annulment proceedings

17.

Article 29 of the CCJA Rules provides for the right to seek annulment of the award (that the parties may waive provided the award is not contrary to international public policy). The petition is filed before the CCJA Court, not Member States’ courts.19 In that respect, the CCJA provides an integrated system somewhat similar to ICSID annulment proceedings before ad hoc committees.20

18.

An award may be annulled in the following cases:

  • the tribunal ruled without an arbitration agreement or based on an agreement that is void or expired;
  • the tribunal ruled without complying with the mandate conferred upon it;
  • the principle of due process has not been respected;
  • the award is contrary to international public policy;
  • the arbitral tribunal was irregularly composed, or the sole arbitrator was irregularly appointed;
  • the award fails to state the reasons on which it is based.21
19.

This recourse may be sought as soon as the award is rendered and within two months from its notification by the CCJA Secretary General.22 If the Court annuls the award, it may review the merits of the case if both parties so request.23

F. Revision and third-party opposition

20.

A tribunal can be asked to revise an award only if new facts – that could have led it to render a different decision – are discovered after the rendering of the award (Article 32).24 

21.

Any third party not called before the arbitral tribunal may file an application to the CCJA Court against an award that is prejudicial to its rights (Article 33).25

G. Enforcement of awards

22.

Exequatur must be requested from the CCJA Court (Article 30). When exequatur is granted, the award becomes enforceable in all OHADA Member States as if they were rulings made by the national courts of the State in which the award is being enforced.26 (See Enforcement of OHADA Awards).

23.

The grounds on which exequatur may be refused are the same as the first four grounds for the annulment of the award mentioned above (cf. § 18).27

Bibliography

Treaty on the Harmonization of Business Law in Africa, 17 October 2008. 

Arbitration Rules of the Common Court of Justice and Arbitration, 23 November 2017, 15 March 2018. 

Internal Rules of the Common Court of Justice and Arbitration relating to arbitration, 2 June 1999.

Rules of Procedures of the Common Court of Justice and Arbitration, 18 April 1996, revised 30 January 2014. 

OHADA, Guide d’arbitrage de la CCJA-OHADA, 2nd ed., May 2018.

Assiehué, E.A., Du Pac de Marsoulies, C., Lauriol, T., Raynaud, E. and Tavaut, M., Règlement d’arbitrage CCJA, 2018.

Fénéon, A., Tchakoua, J. M. and Aka, N., Le nouveau droit de l’arbitrage et de la médiation en Afrique (OHADA), 2018.

Bühler, M.W., Out of Africa: The 2018 OHADA Arbitration and Mediation Law Reform, Journal of International Arbitration, 2018, pp. 517-540.

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