Study On The Legal Regime Of Dispute Settlement Of The Organization For The Harmonization Of Business Law In Africa

The Organization for the Harmonization of Business Law in Africa(hereinafter referred to as OHADA)is an important regional organization dedicated to the harmonization and unification of business law,consisting of 17 Central and West African countries located in the sub-Saharan region.It is open to all African countries and its commercial law harmonization and unification landscape is expected to expand further.The organization has already developed and implemented ten uniform laws in the field of commerce,increasing legal certainty and judicial security,and it has gradually improved the business environment in the region.OHADA provides respectively a uniform legal basis with practicality and modernity for multiple dispute resolution methods.The organization plans to harmonize and unify a wide range of commercial subjects,and it continues to update and progressively develop uniform laws.The institutional dividends from these achievements are worth waiting for,and the study and good use of the OHADA dispute settlement legal system can ensure the quality development of China-Africa cooperation.OHADA has established a comprehensive dispute resolution system,which consists of OHADA litigation system,arbitration system and mediation system,providing parties with a wide range of dispute resolution options.At the same time,it encourages the use of mediation,arbitration and other extra-litigation methods to resolve civil and commercial disputes.Therefore,this paper focuses on OHADA’s pluralistic dispute resolution system,and conducts a comprehensive and systematic analysis of the litigation system,arbitration system and mediation system mediation system,with a special focus on the Uniform Law on Arbitration,the Arbitration Rules of the Common Court of Justice and Arbitration and the Uniform Law on Mediation.This paper explores the rules of operation of the dispute resolution system of OHADA through a comprehensive analysis of its judicial institutions;it examines the implementation of the above legal systems by citing actual cases;and it assesses their features,innovations and limitations by comparing the legal texts before and after their revision.This paper is divided into six chapters,except for the introduction.The first chapter explicates the basic issues of OHADA dispute settlement.This paper examines the developmental landscape of OHADA and the outcomes and impacts of the legal integration it has undertaken in the context of economic integration.Different integration ideas have bred different integration organizations,and OHADA is one of the few representatives of African legal integration organizations.This paper will clarify the procedural and substantive legal frameworks of dispute resolution through the legal framework of OHADA,and reveal the cultural basis of Africa’s absorption and acceptance of modern dispute resolution legal systems by exploring the paths and values of dispute resolution embedded in African society and culture.Chapter 2 examines the Common Court of Justice and Arbitration(hereinafter referred to as CCJA),a multifunctional dispute resolution institution.Based on sorting out its functional position and its division of jurisdiction with national courts,this paper examines the CCJA’s multiple identity functions in practice through three paths.The CCJA has the authority to issue advisory opinions on the draft uniform law,the application and interpretation of the OHADA legal system.The support of member states for this supranational dispute settlement body enhances the attractiveness of the OHADA legal system.The CCJA has jurisdiction over all commercial matters governed by the Uniform Law,and it provides for the standardized application of the Uniform Law by hearing appeals involving the Uniform Law through both referral from national courts and direct appeal by the parties.The CCJA itself acts as a regional arbitration institution and administers arbitrations conducted in the CCJA.Chapter 3 analyzes the features and functions of the mediation system of the African Commercial Law Coordinating Organization,which is mainly constructed by the Uniform Law on Mediation.Firstly,three principles of mediation emphasized by the Uniform Act are clarified: the principle of respect for freedom of contract,the need for mediators to remain independent,impartial and able to perform their duties,and the principle of confidentiality and efficiency of the mediation process;while a multidimensional expansion of the scope of application is observed.Secondly,along the initiation procedure of mediation,the roles and functions of the participants of the procedure are distinguished and the articulation of mediation and arbitration is observed.The Uniform Law uses a “multi-step dispute resolution clause” that allows the parties to switch between arbitration and conciliation proceedings at their own discretion.Third,the enforceability of settlement agreements constitutes the greatest innovation of the mediation system.Settlement agreements can be transformed into enforceable awards that are binding and enforceable for both parties.Chapter 4 examines the arbitration system based on the Uniform Law on Arbitration.The Uniform Law on Arbitration contains a complete set of rules dealing with the scope of application of arbitration,the jurisdiction of the arbitral tribunal,arbitration proceedings,arbitral awards,remedies,recognition and enforcement of awards,etc.First,the Uniform Law is applicable to any arbitration in which the seat of the arbitral tribunal is within an OHADA member state.The biggest innovation in the scope of application of the Uniform Law is that investment arbitration can be initiated on the basis of a wide range of legal documents relating to investment,and a state can be a party to an investment arbitration and cannot invoke its domestic law to claim immunity.Second,the paper reviews the arbitration process,distinguishing between the jurisdiction of state courts and arbitral tribunals;it explains the procedural rules applicable to arbitration and the procedure for determining substantive law,as well as the steps for implementing “pre-arbitration proceedings” and the five grounds for termination of arbitration proceedings;clarifying the division of roles between the parties and the arbitral tribunal;and identifying the forms of arbitral awards the third part of the course explains the application for setting aside an award and the conditions for interpreting,correcting or supplementing an award.Third,the procedures and conditions for applying for setting aside an award and third-party objections are explained;specific cases corresponding to each of the six grounds for setting aside an award are cited to explore the specific practice of the competent courts of member states and the CCJA in appeals against setting aside awards;and the procedures for obtaining an order for enforcement of an award and its remedies are clarified.Fourth,by summarizing the innovations brought about by the revision of the Uniform Act on Arbitration,the development trends of transparency,humanization,informatization,flexibility and convergence presented by the Act are identified.Chapter 5 explains the new arbitration system constructed by the CCJA Arbitration Rules,the core of which is the CCJA as both a regional arbitration institution and a regional supreme court under the OHADA Uniform Law.The parties need only contact the CCJA at all stages of the arbitration and at the possible appeal stage of the award,and the CCJA only administers the arbitration and does not render an arbitral award,thus ensuring fairness and efficiency in the arbitration.This chapter explores the features of the CCJA Arbitration Rules along three main paths: the initiation of arbitration proceedings,and the remedy and enforcement of the arbitral award.First,the initiation phase reflects the autonomy of the initiation process,the broad scope of application of the rules,the necessity of “pre-arbitration proceedings”,the two-track system of adding parties,the pragmatism of the scoping meeting,and the flexibility of accounting for arbitration fees.Among them,the paper identifies the concrete manifestation of party autonomy;explains in detail the various forms of arbitration agreements that can be relied upon to initiate investment arbitration,including bilateral or multilateral investment agreements,investment laws and other arbitration-related documents,and illustrates the practical application of arbitration clauses with examples of representative bilateral investment agreements and investment laws of OHADA member states.Secondly,the paper observes that the revised new regulations have expanded the scope of court review of awards;analyzing the conditions for applying for modification,interpretation and supplemental awards;explaining in detail the six grounds for setting aside an arbitral award,and used rich cases to demonstrate the interpretation and determination of the above grounds in the practical application of CCJA.Third,the enforcement of an arbitral award is subject to a double review,with the CCJA first reviewing the draft award and deciding whether or not to grant enforcement,and the competent authorities of the member states then conducting a review.The CCJA Arbitration Rules set a short time limit for each step of enforcement,after which a person will lose jurisdiction.The Rules have been amended to achieve a number of reforms in the arbitration process and in the recognition and enforcement of awards.Chapter 6 gives recommendations and analysis on the application of the OHADA dispute settlement legal system.The security of China’s investment in Africa needs to be guaranteed by the legal system.First,the analysis of data and macro information from the Ministry of Commerce shows that the countries in the OHADA region and the markets and resources they offer are of great importance to Chinese investment,but there are both opportunities and challenges.Chinese companies should make good use of diversified dispute resolution mechanisms to protect their investment interests.First,the differences,advantages and disadvantages of various dispute resolution mechanisms are compared,and investors are advised to properly choose one or a combination of mechanisms to deal with disputes according to their needs.Secondly,in order to promote China-Africa legal cooperation under the "Belt and Road" construction,China can actively cooperate and dock with the African Commercial Law Coordination Organization.The two sides can cooperate in a wide range of areas,such as establishing a China-Africa dispute resolution center,jointly training targeted legal talents,and building special legal research centers.