Researche On The Arbitration Under OHADA Rules

OHADA is a regional economic integration organization composed of 17 sub-saharan west and central African countries.The OHADA member countries have set up a coordinated and unified modern commercial law system by breaking through geographical boundaries and sovereign political restrictions.Since the establishment of OHADA,10 uniform laws have been formulated and implemented,and once the uniform law is adopted,directly applicable within the member state.There is a deep social consensus among member states on the need for legal reform to build legal certainty to safeguard the business environment in Africa.Modern commercial law promotes arbitration and non-judicial dispute resolution,OHADA vigorously develops the arbitration system and encourages the construction of quasi-judicial dispute resolution mechanisms with arbitration as the core,through the establishment of standardized and modern arbitration rules and procedures to achieve the institutionalization and systematic development of arbitration,the construction of a complete arbitration system.The Common Court of Justice and arbitration(CCJA)is a highly innovative institution of OHADA arbitration,which is both the Supreme Court of the region and the permanent arbitration institution On the other hand,create an environment to promote the development of the arbitration system.The OHADA arbitration system is unique and innovative.It not only adopts the same model both at home and abroad,but also stipulates that OHADA arbitration takes precedence over domestic arbitration in Member States,including the dual system of ad hoc arbitration and institutional arbitration,although the history of OHADA arbitration is short and the number of cases is small,the arbitration system of OHADA has the impetus of positive reform.This paper analyzes the reform trend of international arbitration system,and the research on the reform of international arbitration under the multilateral trading system is still piecemeal and theoretical,there are no substantive or Operability answers to the questions that need to be addressed.This paper will discuss the possibility and necessity of China’s participation in OHADA arbitration by combining the international arbitration reform hotspot and the study on the revision and practice of OHADA arbitration law.Apart from the introduction,this article is divided into five chapters:Chapter Ⅰ will discuss the basic problems of OHADA arbitration system from four sections.First,OHADA aims to achieve regional economic integration by harmonizing and harmonizing commercial law,eliminating legal uncertainty and judicial insecurity and improving the business environment in the region,the construction of new economic order needs the escort of law.Secondly,the OHADA dispute settlement mechanism is a quasi-judicial mechanism with arbitration as its core.From the background of the emergence of arbitration and the historical evolution of OHADA arbitration,through the formulation of standardized and modern arbitration rules and procedures,legal safeguards for a Uniform Code of business conduct.Moreover,the OHADA treaty,the Uniform Law on arbitration and the CCJA arbitration rules had jointly established the OHADA arbitration regime,which had been revised in 2017 with a view to improving the efficiency of arbitration services and increasing the predictability of arbitration through detailed provisions.Finally,CCJA,as a permanent arbitration institution,ensures the smooth operation of the arbitration procedure and establishes the institutional framework for the judicial development of OHADA arbitration.Chapter Ⅱ the jurisdiction of OHADA arbitration is demonstrated from three aspects: on the one hand,it is the arbitrability of the subject,which stipulates the parties’ participation in the arbitration,on the other hand,it is the arbitrability of the subject,and on the other hand,the parties’ participation in the arbitration shall be capacity,the Uniform Law on arbitration expands the qualification of arbitration as a legal person and clarifies the qualification of“Public entities” to submit to arbitration,it also lists that “Public entities”,including the state,state-owned enterprises,public institutions and all natural and legal persons,can participate in arbitration as parties to the arbitration,referring to whether the specific types of disputes under an arbitration agreement can be settled by arbitration,the uniform law on arbitration makes it clear that investment disputes can be submitted to arbitration for settlement,and that clarifying the legal provisions on investment arbitration will help reduce the number of legal disputes,it provides clear legal provisions for arbitrators to settle disputes in some arbitration jurisdictions when adjudicating investment disputes.In the legal practice of OHADA and the development of OHADA arbitration,there have been efforts to expand the jurisdiction of arbitration to guarantee the use of arbitration.Finally,according to the OHADA arbitration law,the provisions of the arbitration agreement have two main contributions: on the one hand,it means that the arbitration agreement is independent of the main contract,that is,the form of the arbitration clause is included in the contract,on the other hand,it is stipulated that the validity of the arbitration agreement shall be based on “The common will of the parties to the contract and not necessarily in accordance with the provisions of the Annex to the National Law”,this is different from the well-known cardinal principle.According to this principle,the arbitration clause is not governed by the local law of the country and the main contract.Chapter Ⅲ discusses the positive response of OHADA arbitration procedure to the hot issues of international arbitration reform from three aspects: the pre-arbitration procedure,the Constitution of Arbitration Tribunal and the arbitration hearing procedure.Through the amendment of laws,we have formulated arbitration rules that are rigorous,practical and scientific,transparent and predictable,thus providing institutional guarantees for fair,just and effective promotion of arbitration,it helps to build the confidence of the international business community in the arbitration mechanism.In this aspect,the reform of OHADA arbitration procedure provisions is mainly embodied by four aspects of arbitration procedure: first,the determination of the provisions of the pre-dispute settlement procedure;Second,increase the jurisdiction of national judicial institutions without exception of the admissibility process;Third,the principle of good faith in the arbitration procedure is embodied in the interim measures and preservation measures.Fourth,the termination of the arbitration procedure is clearly stipulated,and the legal norms of the reasons for the termination of the arbitration procedure before the arbitration award are improved.Chapter Ⅳ OHADA Arbitration is the most prominent feature of the enforcement of the award.In member states,the OHADA arbitral award is directly enforceable without having to apply for other enforcement proceedings in the state of enforcement,and this unique award enforcement rule is extremely attractive,many disputing parties will choose OHADA arbitration because of the compulsory and convenient enforcement of the award in the member states.Although the design of the arbitration award system has been sufficiently innovative and advanced,the OHADA arbitration law has been reformed on the original achievements through continuous revision.The main direction of the reform of the arbitration award provisions is to improve the effectiveness of the award,guarantee speedy execution of the award.The reform is reflected in two aspects: on the one hand,the enhancement of the effectiveness of arbitral awards by adding provisions on the obligation of voluntary enforcement of awards and rules on interim enforcement;and on the other hand,the revision of the rules on appeals against the setting aside of awards,the efficiency of arbitration can be improved by reducing the limitation of Appeal,simplifying the appeal procedure,speeding up the hearing of the appeal against the setting aside of an award and adding the clause of waiving the right to appeal against the setting aside of an award.Chapter Ⅴ OHADA arbitration system and China’s two-sided relationship: on the one hand,China cannot avoid OHADA for its investment in Africa,china-africa commercial disputes will increase with the deepening of china-africa economic cooperation,and we need to resolve disputes through legal means,to avoid or reduce losses,to maximize their legitimate rights and interests,OHADA arbitration advantages reflected in: First,OHADA more understanding of the host country’s laws and disputes,the award is more fair and just;Second,compared with the difficulty of recognition and enforcement of foreign awards in Member States,the OHADA arbitral awards have the power of enforcement Third,compared with international arbitration institutions,the cost of OHADA arbitration is low and the time-consuming of arbitration;Fourth,OHADA is changing the marginalized status of African countries to form a fair and reasonable new order.On the other hand,the new reform and development of the OHADA arbitration system can provide new ideas and lessons for the revision of China’s arbitration law,especially the experience and lessons learned from the practice of building a diversified dispute settlement mechanism of “Mediation,litigation and arbitration”,improving China’s international commercial court and actively responding to the challenges that may arise in the construction of the “the Belt and Road Initiative” dispute settlement mechanism.