The Paris Court of Appeal lately upheld the supranational nature of OHADA law using disregarding an annulment application.
In December last year, the Paris Court of Appeals upheld an arbitral award using the law of Organisation pour l’harmonisation en Afrique (OHADA), the West and Central African business law enterprise. The utility to set aside the award has been brought by the State of Cameroon based totally on Cameroonian law arguments.
However, the courtroom applied OHADA law over Cameroonian regulation, inside the process confirming the supranational nature of OHADA law. Therefore, this is an interesting decision that suggests the courts of a kingdom external to OHADA establishing that law’s pre-eminent stature.
Project Pilote Garoubé becomes an enterprise established in Yaoundé, Cameroon, one of the founding OHADA states. Therefore, the corporation became ruled via the OHADA regulation on agencies – the Uniform Act regarding Commercial Companies and Interest Groups.
Garoubé entered into concession agreements with Cameroon in 2001 to behavior sports ranching and related farming sports. After five years, Cameroon unilaterally suspended the concession agreements. Garoubé then transferred its registered places of work to Belgium, thus turning into a company ruled via Belgian law.
The ensuing dispute has been ongoing for several years. Garoubé initiated arbitration proceedings on the premise of an ICC International Court of Arbitration clause inside the agreements. A first arbitration award changed into rendered but then annulled because of a conflict of interest on one of the arbitrators. A second tribunal was constituted and issued two partial awards, first on jurisdiction and later on liability. These awards shaped the idea of Cameroon’s request for annulment within the gift case.
Among the different arguments made in the help of its request for annulment, Cameroon argued that Garoubé’s switch of registered office from Cameroon to Belgium – even though authorized via OHADA law – turned into a breach of Cameroonian rules referring to flora and fauna exploitation. Therefore Garoubé, in its fame as a Belgian corporation, did not have the status to convey arbitration towards Cameroon, and consequently, the tribunal did no longer have jurisdiction.
The court docket brushed off all of Cameroon’s arguments, applying especially sturdy reasoning at the superseding nature of OHADA law.
The courtroom endorsed the arbitral tribunal’s decision on jurisdiction. It mainly held that the OHADA treaty ought to be construed as placing a supranational rule offering for the direct and mandatory utility of uniform acts in member states, with supremacy over any former or next domestic prison provisions. Interestingly, the court docket also set out that the Uniform Act’s provisions regarding Commercial Companies and Interest Groups were of public coverage and on the spot and direct application. In different phrases, OHADA regulation provisions protecting a business enterprise’s registered workplace’s transfer had been interpreted as overriding any opposite OHADA country regulation.
As a result, Cameroon’s law regarding the natural world couldn’t save you the transfer of Garoubé’s registered office and consequently had no impact on the arbitration settlement’s enforceability and the jurisdiction of the arbitral tribunal.
Also, Cameroon claimed that its guidelines on wildlife had been obligatory overriding guidelines and that via failing to take these regulations into account, the award had breached global public coverage. The Paris Court additionally disregarded this argument, reminding Cameroon of the high threshold required to expose a breach of worldwide public coverage underneath French law.
Courts passed the limits of the 17 OHADA States will not often get the opportunity to don’t forget the popularity of OHADA law. When confronted with allegedly competing for provisions of OHADA and nearby law, the Paris Court, possibly unsurprisingly, upheld the supremacy of the international OHADA law, and in doing so, used strong terms to make sure the problem remained beyond doubt.
Indeed, the strong wording used by the court – assimilating OHADA regulation to public policy – shows that it will likely be hard for events to get around OHADA regulation. This connection with public coverage increases some of its very own questions, such as whether a breach of OHADA law may want to shape the premise for an annulment utility beneath OHADA or New York Convention ideas. Such problems stay open for an explanation at a later date.
By endorsing the superseding nature of OHADA regulation, the Paris Court of Appeals offers impact to the OHADA Treaty’s preliminary promise: a “harmonized enterprise law as a way to improve companies’ enterprise,” including by giving visibility and predictability to corporations instituted under that comprehensive prison system. This decision ought to consequently help to make sure that other companies like Garoubé can avail themselves of OHADA law for their very own benefit.
Thomas Kendra is an associate, Thibaud Roujou de Boubée an accomplice, and Ledea Sawadogo-Lewis, a paralegal inside the Paris worldwide arbitration organization Hogan Lovells’ Africa practice.