Grounds For The Refusal of Arbitral Awards Under The OHADA Uniform Act On Arbitration 1999 By Ndeugwe Bernard Taylor Tumnde

Introduction

The Organisation for the Harmonisation of Business Law in Africa (Organisation pour l’Harmonisation en Afrique du Droit des Affaires) Treaty commonly known by its French acronym as OHADA was born out of a meeting of Ministers of Finance of the CFA[1] Franc Zone in Ouagadougou, Burkina Faso in 1991.[2] This treaty was signed at Port Louis, Mauritius on the 17th day of October 1993. Fourteen States were the initial signatories.[3] Two years later (1995) it came into force. Subsequently, Guinea Bissau, Guinea Conakry, and the Democratic Republic of Congo joined, bringing the total membership to seventeen (17).

The envisaged aim of the signatories of the treaty was to harmonise laws through the preparation and adoption of common, simple and modern rules by Uniform Acts (Actes Uniformes) well suited to their economic situation; the establishment of appropriate judicial procedures within the judiciary and the encouragement of the use of arbitration as a speedy and discreet method for settling commercial disputes.[4] Presently, the OHADA Treaty has five institutions made up of Conference of Heads of State and of Government; Council of Ministers of Justice and Finance which is the legislative body; a Common Court of Justice and Arbitration based in Abidjan, Ivory Coast; Permanent Secretariat based in Yaoundé, Cameroon[5] and a centre of training and continuing legal education known as the Regional Training Centre for Legal Officers (E.R.S.U.M.A.) based in Porto Novo, Benin.

The achievements of OHADA are really significant with nine Uniform Acts in force covering a large scope of application. This reveals a real success in less than fifteen (15) years with Uniform Acts on: General Commercial Law which came into force on the 1st January 1998 and its subsequent amendments of 2010 which became effective in 2011; Commercial Companies and Economic Interest Groups which entered into force on the 1st January 1998; Securities which entered into force on the 1st January 1998 and its subsequent amendments of 2010 which became effective in 2011; Simplified Recovery Procedures and Measures of Enforcement which entered into force on the 10th  July 1998; Collective  Proceedings for Clearing of Debts (Bankruptcy) which came into force on the 1st January 1999; Arbitration which came into force on the 11th June 1999; Accounting which came into force on the 1st  January 2001 and 1st January 2002; Carriage of Goods by Road which came into force on the 1st  January 2004 and lastly Uniform Act on Co-operative Societies which came into force on the 15th February 2011. It should be noted that though the OHADA Treaty was amended on the 17th day of October 2008 at Quebec and though the working languages became French, English, Spanish and Portuguese,[6] only the French texts are considered authentic since there is as of yet no official translation of the OHADA texts. In any event, if there is a language conflict, the French text will supersede, even under Article 42 of the revised treaty.

The Uniform Acts became applicable in the OHADA member States immediately they came into force, pursuant to the Treaty’s Article 10. Hence, as from the 11th day of June 1999, arbitration is governed in the OHADA member States by the Uniform Act on Arbitration 1999 to the extent of its scope.[7]

Grounds for Refusal of Arbitral Awards

The Uniform Act on Arbitration 1999 contains grounds for refusal of recognition and enforcement of arbitral awards. Unlike other legislations on arbitration such as the UNCITRAL Model Law on International Commercial Arbitration 1985, the Uniform Act makes no distinction between international and national arbitration. Therefore, the grounds for refusal for recognition and enforcement of arbitral awards contained in the Uniform Act are deemed to regulate the enforcement of arbitral awards whether national or international.

Article 26 of the Uniform Act on Arbitration contain the only grounds on which parties in the OHADA zone can rely regarding refusal to enforce an award. The Common Court of Justice and Arbitration (CCJA) also insist that the only grounds for refusal are those contained in the Uniform Act.[8] Certain main aspects of the grounds for refusal can be observed in the Uniform Act. The first aspect is that the Uniform Act does not permit any review on the merits of the award to which they apply[9].  This law does not contain grounds for refusal based on a mistake in fact or law by an arbitrator or arbitrators.[10] Secondly, the grounds for refusal of recognition and enforcement as set out in the Uniform Act are exhaustive. They are the only grounds in which an arbitral award can be refused enforcement in an OHADA member State when applying the Uniform Act on Arbitration. This is a very important interpretation of the Uniform Act, and one which is generally accepted. One of the main principles of international commercial arbitration is that national courts should not be involved in the substance of arbitration proceedings.[11] This is one of the reasons for choosing arbitration instead of court proceedings. It is a general rule that there can be no review of the merits, even if the arbitrator has erred on questions of fact or law. It is also significant to note that under the Uniform Act, the burden of proof is not upon the party seeking recognition and enforcement but on the party who wants the award to be refused recognition and enforcement.[12] This aspect constitutes an arbitral award friendly attitude as it maximizes the beneficiary’s chances to have the award recognised and enforced. It also minimizes the power of the court, as the court will not on its own initiative investigate any of the grounds in Article 26 of the Uniform Act exists except on grounds on public policy.

Another main aspect is the fact that the enforcing court is not obliged to refuse enforcement. It is stated in Article 25 of the Uniform Act that an award may be subject to a petition for nullity. This wording gives the magistrate the freedom to overlook a ground for refusal and enforce the arbitral award even though such a ground exists. Lastly, the refusal grounds set out in the Uniform Act are most of the time interpreted narrowly. This means that the refusal grounds are accepted only in very severe cases. Several decisions made by courts in Cameroon support this narrow interpretation.[13]

Article 26 of the Uniform Act lays down the grounds in which an award may be refused enforcement or not and it also contains six grounds for refusal to enforcement arbitral awards. A competent court may also refuse to enforce an award if they discover certain criteria stipulated under Article 26 paragraph 2 and Article 2 of the Uniform Act on Arbitration on its initiative or suo moto.  This ground that can be raised by the courts on their own initiative or suo moto are most of the time referred to as ex officio grounds.

For a more convenient examination of the grounds for refusal of recognition and enforcement of arbitral awards, the different parts Article 26 of the Uniform Act shall be grouped under the following heads:

1)     No or Invalid Arbitration Agreement. (Uniform Act Art. 26 para.1)

2)     Irregularity in the Composition of the Arbitral Tribunal or the Arbitral Procedure. (Uniform Act Art. 26 para.2)

3)     Excess Authority. (Uniform Act Art. 26 para.3)

4)     Violation of Due Process.  (Uniform Act Art. 26 para.4)

5)     No reasons for the Award. (Uniform Act Art. 26 para.6)

6)     Public Policy. (Uniform Act Art. 26 para.5; Uniform Act Art. 2)

A judge shall when a question of refusal in the enforcement procedure arises, verify whether circumstances given either by the Respondent or raised suo moto are justified in accordance with Article 26 of the Uniform Act. As noted earlier, no review on the merits is allowed.  A distinction is most of the time made between the grounds that can be invoked by a party and grounds invoked by the court on its own motion.

1)     No or Invalid Arbitration Agreement

Article 26 paragraph 1: “if the arbitral Tribunal has ruled without an arbitration agreement or on an agreement which is void or has expired”

If a party seeks to settle a commercial dispute by arbitration, a valid arbitration agreement is the foundation stone of such a choice.[14] The main function of an arbitration agreement is to prove that the parties had consented to refer a future or current dispute to arbitration instead of court proceedings.[15] The Uniform Act on Arbitration contains a writing requirement of an arbitration agreement.

Article 26 paragraph 1 of the Uniform Act on Arbitration enunciates two diverse arguments against enforcement of an arbitral award. On the one hand, arbitration being a contractual and private justice system, it is justifiable that an arbitral award is refused on the ground that the arbitral tribunal ruled without an arbitration agreement or on the basis of an agreement which was void or had expired. The possibility of making an award without an arbitration agreement is rare. When this ground for refusal is raised, it often takes the form of an arbitration agreement whose scope is contested, or allegations that negotiations were not completed for the conclusion of an agreement. This point was amplified by the Cameroon’s Court of Appeal for Littoral region in the case of Complexe Chimique Camerounais (CCC) c/ Société SAFIC ALCAM SA.[16] In this case, the Justices of Appeal annulled the arbitral award due to the fact that the documents furnished to the Court of Appeal did not reveal that the contract was conclusive.

On the other hand, an arbitral award may equally be refused if it is made after the expiry of the arbitration agreement. Indeed, arbitrators are not permanent arbiters like court judges; their mandate is limited in time by the duration of the validity of the arbitration agreement. If the latter expires, arbitrators lose their powers to act and an award made post-expiry will be nullified because it lacks legal basis. Most often, the parties anticipating the expiry of the mandate of the arbitrators may extend the duration of the arbitration agreement.[17]

Where an arbitration clause is to be inserted into a contract to which a State is party, it is of great importance to determine if the State party has capacity to agree to arbitration. To determine this, an investigation must be carried out with regards to the national law of the State party concerned, as well as the law of the forum of arbitration. It is also well advisable to pay attention to possible conventions and treaties that the State has adhered to. The matter that remains of interest in Article 26 paragraph 1 of the Uniform Act regarding invalidity of the agreement is mainly the lack of consent, including misrepresentation, fraud and undue influence. These defences can hardly be successful,[18] where the agreement is in order and if both parties signed the agreement, it is hard to claim fraud or misrepresentation.[19]

2)     Irregularity in the Composition of the Arbitral Tribunal or the Arbitral Procedure

Article 26 paragraph 2: “if the arbitral Tribunal was irregularly composed or the sole arbitrator was irregularly appointed.”

Where the parties have made an agreement regulating the composition of the arbitral tribunal and the arbitral procedure, any alleged irregularity is to be measured against that agreement of the parties. This clearly establishes the supremacy of party autonomy, since the law of the country where the arbitration took place can only be applicable if the agreement of the parties is lacking or does not regulate the specific matters or if that law was chosen by the parties. Therefore, any composition of an arbitral tribunal or arbitral procedure which goes against the tenets of the parties’ agreement can render an award null and void. This defence minimises the role of lex loci arbitri in the enforcement process. Therefore, a party cannot successfully raise this defence on the ground that the award does not comply with the law governing these matters, when the composition of the arbitral tribunal and the arbitral process comply with the agreement of the parties.

The irregularity in the composition of the arbitral tribunal may be found elsewhere than in the non-compliance with the stipulations of the parties. It will be enough that an arbitrator appointed fails to meet the legal requirements to perform. He may lack capacity for instance. According to the stipulations of the Uniform Act, the irregularity in the composition of the arbitral tribunal may come from the appointment of arbitrators in an even number; due to the fact that Article 8 of the Uniform Act provides that an arbitral tribunal shall be composed of one or three arbitrators. Obviously, this stipulation has been interpreted broadly by some authors, to include stipulations by rules of arbitral institutions allowing for a panel composed of five arbitrators. The essential aspect is the presence of an odd number of arbitrators.[20] This view has however been highly criticised by Professor Claire M. Dickerson[21] who says that it is wrong for some authors to impute that an odd number of arbitrators means any odd number despite the fact that Article 8 of the Uniform Act limits it to three (3) arbitrators.

Most often, parties react to an irregular composition of an arbitral tribunal by an application to the courts challenging the arbitrator who has been irregularly appointed. If such applications are definitely rejected by a national court, then the parties may be estopped from using the same ground to challenge the award. Also, where the parties have through their behaviour waived their rights to challenge some irregularities in the composition of the arbitral tribunal, for instance, being fully aware that an arbitrator appointed by his opponent does not fulfil the required conditions of competence provided in their arbitration agreement, may be seen as a tacit waiver of the irregularity.[22] In general, a party who intends to challenge an award should not, through his behaviour, allow the proceedings to continue its course when he is fully aware of the irregularity. If he has the opportunity to raise an objection on an irregularity before the tribunal, he should do so in limine litis. In the Court of Appeal of Abidjan case of M. Vuarchex Jacques Pascal c/ La Scierie Nouvelle de Gadouan,[23] the court held that an arbitral award cannot be annulled on a ground of procedural irregularity which was not raised at the time of the arbitration proceedings.

This ground for refusal is rarely relied upon when recognition and enforcement of an award is sought before the courts.[24] In the case of China Nanhai Oil Joint Service Cpn v. Gee Tai Holdings Co. Ltd,[25] the court in Hong Kong still enforced the award although the ground spelled out in Article V(1)(d) of the New York Convention was sufficient and fulfilled. The Respondent contended that the arbitrators appointed were on the Shenzhen CIETAC[26] list, whereas the arbitral agreement of the parties stipulated that the arbitrators should be appointed by the Beijing CIETAC list. The court enforced the award anyway and rejected the defence. It held that despite the fact that the arbitrators were from the wrong list, they were according to the parties’ agreement, on a CIETAC list.

It should also be noted that even though the rules relating to the composition of an arbitral tribunal and the arbitral procedure are important to commercial arbitration, they are more of private importance. The court cannot therefore raise such irregularities on its own motion (suo moto) for it is not against public policy.

3)     Excess Authority

Article 26 paragraph 3: “if the arbitral Tribunal has settled without conforming to the assignment it has been conferred.”

Arbitration agreements as mentioned above are the foundation stone for international commercial arbitration. Arbitral proceedings cannot take place without an arbitration agreement duly executed by the concerned parties.[27] As per Article 26 paragraph 3 of the Uniform Act, a presumption is that the parties have a valid arbitration agreement, but what happens where during the arbitration proceedings the arbitral tribunal or arbitrator(s) exceed their assigned mandate? Two scenarios can be seen in the Uniform Act in which arbitrators exceed their authority. The scenario concerns on the one hand, awards made by the tribunal outside their jurisdiction (ultra petita) which simply means the arbitrators have performed or gone outside of the mandate entrusted by the parties in the arbitration agreement. The question of the arbitrability of the subject matter does not depend on the applicable law. This law may, or may not, allow arbitration of a certain dispute, but that is not what is in issue. It is rather the arbitration agreement made by the parties that is in issue when one determines whether the arbitral tribunal or arbitrator(s) have exceeded their mandate.

For example, an arbitral tribunal or arbitrators will have exceeded their authority if the arbitral tribunal has dealt with an issue that was not submitted to it. In these cases, the arbitral tribunal begins the proceedings within their power, but then goes beyond what was originally allowed. Since in those cases part of the proceedings has been properly conducted a non-enforcement of that part of the award would not be logical as it would be a waste of time and money but the “good” part is not always severable. Article 26 paragraph 3 does not provide a solution where arbitrators partially exceeded their authority in making an award. However, the courts may follow the position adopted in the second part of Article V(1)(c) of the Convention. This relates to the possibility of a partial enforcement of an award which contains both decisions within and outside the arbitral tribunal’s authority or mandate. On most occasions, neither of these defences has successfully been invoked.[28]

In the case of Libyan America Oil Company (LIAMCO) v. Socialist Peoples’ Libyan Arab Yamahirya, formerly Libyan Arab Republic,[29] the arbitrators had exceeded their authority in awarding a sum for consequential loss when the arbitral agreement between the parties had clearly excluded this head of claim. In this case, the arbitrator awarded something which was not claimed by the parties. The US Court of Appeals for the District of Columbia, however, enforced the award. The Court stated that without an in-depth review of the law of contract in the case, it could not refuse the award and the Court had no power to review the case on the merits.

When arbitrators have ruled that certain matters fall within their mandate in accordance with the principle of Kompetenz-Kompetenz,[30] a court can still rule that they have exceeded their authority and enforcement of the award can still be refused. In the arbitration proceedings of SAFIC ALCAM v. Complexe Chimique Camerounaise, the arbitral tribunal ruled on its competence as per the Kompetenz-Kompetenz theory and assumed jurisdiction.[31] However, the Littoral Court of Appeal ruled that the arbitral tribunal had no competence to adjudicate on the matter.[32] Should this situation arise, there will be no question as to the applicable law in most cases, as the excess of authority is largely a question of fact.[33]

4)     Violation of Due Process

Article 26 paragraph 4: “if the principle of adversary procedure has not been observed.”

Violation of due process is the second ground for refusal of recognition and enforcement under the Uniform Act on Arbitration that shall be examined herein. Fair hearing and adversary proceedings is a fundamental requirement of any judicial process be it litigation, mediation or arbitration.  It is also referred in Latin as audi alteram partem in most jurisdictions. These rights are protected in Article 26 paragraph 4 of the Uniform Act. Irregularities that can mostly arise in arbitration proceedings are covered within the scope of due process. It covers, for example, improper notice of the proceedings, inability to present a case and a denial of the right to be heard.[34] This article ensures that the arbitral tribunal observes certain standards of fairness. Violation of due process is probably the most important ground for refusal and is necessary for ensuring the future of arbitration. When parties are from different countries as in many cases proceed in a foreign jurisdiction, they must have confidence in the way the proceedings are conducted.

What may constitute due process may significantly differ from the seat of arbitration to the seat of enforcement. This can lead to uncertainty and additionally to an unforeseeable outcome of the arbitration. This constitutes a problem, as it is a widespread concept that international commercial arbitration should be conducted more freely as compared to national arbitration.[35] The court and the law in the country where the arbitration proceedings takes place normally has its own notion for the requirements of due process and this may be different from the requirements of the seat of enforcement. Generally, the national court should be satisfied if the arbitral proceedings were carried out in accordance with the agreement of the parties, in accordance with the principles of equality and the right to present a case. The court at the place of enforcement has a more limited role. Its function is merely to decide if due process was maintained.[36]

Once again, the question of applicable law arises. According to which law is a violation of due process to be adjudicated? I strongly believe that due process should be regarded as an international rule rather than a national one when dealing with this ground. OHADA is a community law which strive to harmonise business law in Africa hence it must be given a community view and not a national one. Hence, if parties agree on the composition of the arbitral tribunal and the arbitral procedure, the law governing these matters is not to be taken into account. Such freedom must however be limited by the fundamentals of due process to be a matter of international standards, and beyond the reach of national law, so can Article 26 paragraph 2 be seen as an international rule. In doing so, a provincial and narrow rule does not interfere with the orderly procedure of an international award. This argument is, so far, merely a discussion of literature as this is not normally the case in practice. National courts most of the time apply the concept of due process according to the law of their country.[37] This division may seem troublesome but, in fact, the result of the judgments and the conclusions from the authors are more or less the same. This is possible since the courts hold that what may be a violation of due process under its own law is not necessarily a violation of due process under the Uniform Act on Arbitration.

Aside from the question under which law the standards of due process are to be resolved, there are other problems as well. A problem which normally crops up when applying the Uniform Act is the fact that due process is normally viewed in conjunction with public policy.[38]  If this is so, a court would be able to refuse enforcement of an award on its own motion, if it finds that a violation of due process exists. There is no court decision in support of this narrow interpretation, and the prevailing opinion is that a violation of due process is not a public policy ground.[39] This should be viewed as a precautionary measure where the court has mandate to refuse enforcement when the Respondent does not invoke this.

Another important consideration is how a national court should behave in relation to the violation of due process, and the actual impact on the decision in question. Van den berg believes that, only if it is beyond any doubt that the decision would have been the same had due process been respected, is a court allowed to enforce an award in opposition of due process.[40] It is only in very severe cases that courts deny the enforcement of an award on the ground of violation of due process.[41] In Minmetals Germany v. Ferco Steel,[42] the losing Respondent of an arbitration proceeding in China opposed enforcement in England on the grounds that the award was founded on evidence that the arbitral tribunal had obtained through its own investigations. An English court rejected this defence on the basis that the Respondent was eventually given the opportunity to ask for the disclosure of evidence in issue and to comment on it, but declined to do so. The court held that the due process defence to enforcement was not intended to accommodate circumstances in which a party had failed to take advantage of an opportunity duly accorded to it. Equity does not help the indolent. Many jurisdictions have taken a similar restrictive interpretation of the due process defence to enforcement, e.g. German courts have held that a tribunal’s refusal to hear evidence can only breach the right to be heard if such evidence is relevant.[43] It has been noted that arbitrators and arbitration institutions give attention to due process in the proceedings, but that the Respondents use due process for chicanery purposes.[44]

5)     No Reasons for the Award

Article 26 paragraph 6: “if no reasons are given for the award.”

The requirement of giving the reasons on which awards are based is so fundamental in OHADA member States to the extent that failure to comply with it may be enough for an award to be refused enforcement. However, it is not fair to expect that reasons for arbitral awards to be presented in a similar form with that of a judgment or ruling of the enforcing State.[45] More so, given that arbitrators come from all types of backgrounds and are not obligatorily jurists, it can however be legitimately expected of them a minimum effort of giving reasons for the award making it known to the parties that the award is not arbitrary. It is therefore simply required that arbitrators show proof that the award delivered is reasoned and not as a result of an arbitrary act. Strictly speaking, an award can only be refused in case of no reason or contradiction in the reasons given. This may look as if the enforcing court has the powers to go into the merits of the case and examine the reasons to see whether there is a contradiction or not but this is not the case. Most the time the enforcing court just looks whether there is a reason or not and there is the award is enforced.

6)     Public Policy

Article 2: “Any natural person or corporate body may recourse to arbitration on rights of which he has free disposal. States and other territorial public bodies as well as public establishments may equally be parties to an arbitration without having the possibility to invoke their own law to contest the arbitrability of the claim, their authority to sign arbitration agreements or the validity of the arbitration agreement.”

Article 26 paragraph 5: “if the arbitral Tribunal bas violated an international public policy rule of the States, signatories of the Treaty.”

The concept of public policy may have effect on most areas of law. Article 2 and Article 26 paragraph 5 of the Uniform Act of Arbitration encompass the public policy defence that the court may raise and sustain suo moto, i.e. even no request has been made by a party. Public policy is an unruly horse and very difficult to define in one or two sentences. It is very unusual to see an explanation of it made by a court. It may be illogical to divide the public policy ground into two parts[46], as both parts relate to public policy. This is, however, done since though Article 2 is regarded as a public policy ground, it is not considered as a ground to challenge an award under the Uniform Act. Public policy is a term which is also known as ordre public.[47] This alternative expression is used mainly in civil law countries[48] and is believed to be broader.[49] The two expressions have gradually developed to have the same meaning in the sphere of arbitration.[50]

Public policy or ordre public in its classical sense means rules and regulations which have as duty to guard the basic values of a society.[51] It is also said that public policy is the rock on which a society is built.[52] The term ordre public international is mentioned in OHADA arbitration laws as regards exequatur and nullification of awards proceedings. In this regards, the OHADA Treaty stipulates in its Article 25(4) that an arbitral award can only be refused enforcement when the award is contrary to international public policy. While the OHADA Treaty and CCJA Rules of Arbitration[53] talks of international public policy, the Uniform Act on Arbitration talks of international public policy of the member States of the Treaty. It can therefore be seen that the OHADA Treaty and CCJA cover a narrow scope as concerns public policy than the Uniform Act which is wider. In all, the contour of international public policy has not been defined by OHADA. It is the Common Court of Justice and Arbitration that has a preponderant role to play in defining precisely the content of public policy. Furthermore, whilst the Uniform Act expressly referred to the notion of a community public policy, this Act appears implicitly to allow the maintenance of specific national public polices, where the dispute falls outside the scope of OHADA.[54] International public policy would therefore be upheld in a member State where the award breaches the country’s basic notions and those of other OHADA member States.[55]

The first public policy defence[56] relates to whether the subject matter of the dispute can be settled by arbitration in the enforcing State. The article refers explicitly to the law of the country where the enforcement of the award is sought. No question, therefore, should arise as to which law is applicable to the arbitrability of the subject matter because it is the law of enforcing jurisdiction that applies. Examples of matters that generally are seen as non-arbitrable matters are anti-trust, family law, security transactions, fraud, bribery and corruption and certain aspects of intellectual property rights.[57] This is because these matters affect public interest and are reserved for national courts whose proceedings are generally in the public domain. The concept of arbitrability varies from country to country and has been developed through the years.  The Uniform Act on Arbitration does not restrict arbitration to commercial matters. Article 2 of the Uniform Act provides that arbitration may be resorted to with respect to any rights that may be freely disposed of. This means that any dispute may be submitted to arbitration on condition that it does not relate to rights where intervention of public authorities is required.[58] However, as mentioned above, it is thought wise that since the OHADA Treaty and its Uniform Acts regulate only business issues, arbitration proceedings should be restricted only to business matters.

A country may under Article 26 paragraph 2 refuse recognition and enforcement of an award if the award is against the public policy of that State. This right is understandable since it relates to a country’s fundamental principles. As stated before it is difficult to define the concept of public policy, and a description of a violation of it is even harder. Each State has its own definition of public policy, which means that there is a risk that one State may deny an award that another State regards as valid. To prevent this from happening, an international public policy concept has been developed.[59] It is put forth in the literature that only a violation of a country’s public policy in relation to international relations shall be of interest.[60] An established description of a violation of international public policy is an action that would violate the forum States’ most basic notions of morality and justice.[61] An international public policy limits judicial interference with international arbitral awards. This opinion is recognised by courts in the OHADA States.[62] The courts, then, provide an international dimension, as opposed to a domestic one, to the concept of public policy when enforcing arbitral awards. One must, however, remember that even if public policy is recognized as international, its basis is national, as it can only be dealt with by a national court.

The International Law Association’s Committee on International Commercial Arbitration published in 2000 and 2002 a report titled “Public Policy as a Bar to the Enforcement of International Arbitral Awards”. This report gives some guidance for the classification of public policy grounds and divides them into procedural and substantive matters. According to this report, a procedural public policy ground includes fraud in the composition of the tribunal, lack of reasons in the award, and lack of impartiality. The concept of the substantive matters of the public policy ground includes fundamental principles of law and actions contrary to good morals such as misrepresentation.[63] The distinction between international and domestic public policy is justified by the differing purposes of domestic and international relations. As a result, matters which fall under international public policy are fewer than those in domestic cases.[64]

Due to the narrow interpretation of public policy by the Uniform Act, the question whether the courts have gone too far in limiting public policy to considerations of the forum States’ most basic notions of morality and justice has been raised.[65] States tend to comply with international standards to such a great extent that it is alleged that it has led to a useless definition of public policy. It is even suggested that as the definition of law is difficult to pin down,[66] so too is the definition of public policy. Such an exercise is particularly difficult when the target is constantly moving, since, as the legal and social norms of a State shifts over time, so too is State’s notion of public policy.[67] Therefore, the practice of enforcement States is bound to diverge when States are allowed to define public policy themselves, as provided by the New York Convention[68] which is similar to the Uniform Act on Arbitration. A development such as this can be a hindrance to international arbitration. Parties could, at least in earlier times, rely on the protection embodied by the public policy concept in the seat of enforcement.

An overall conclusion, based on the outcomes of enforcement cases of international arbitral awards around the world is that, courts hardly uphold the defence of public policy.[69] The defence regarding violation of public policy is, however, commonly raised by parties in the enforcement proceedings. In general, an award will only be refused if the international public policy principle is violated. However, there is a serious risk of disparity within the OHADA Member States in the application of the Uniform Act, since a domestic definition controls. The only disparities that are accepted by the OHADA Uniform Acts in general and the Uniform Act on Arbitration more specifically are those related to procedural rules. If other disparities are accepted at the level of substantive rules then this will jeopardise the objective which is sought through these laws because of the difficulty of finding out what the standards will be.

A far more restrictive view is taken concerning a violation of international public policy. For example, an award issued by the Istanbul Chamber of Commerce was enforced in Germany even though the award did not expressly state the reasoning for the judgment in the award.[70] The German court stated that this would be contrary to German internal public policy but distinguished this from international public policy, which could only be violated if the foreign decision was contrary to the German procedural law to such an extent that it would violate the Constitution. This reveals that international public policy considered by the courts is mostly procedural and not substantive.

Conclusion

The grounds discussed above are the only grounds contained in the Uniform Act on Arbitration 1999 which can be used to nullify arbitral awards in the OHADA member States. However, it should be noted that there are other legislations which some member States are signatory to such as the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards 1958. This legislation in its Article V also contains grounds for the refusal of arbitral awards and may sometimes be referred to especially in circumstances where the awards emanates from a State which is not a signatory to the OHADA Treaty. Hence, it is advisable for a party to investigate where its award is considered a foreign award or whether other legislations may apply to the enforcement of an award.



[1] Communauté Financière Africaine (African Financial Community)

[2]A. MUNA, “Is OHADA Common Law Friendly?” (2003) University of Buea Seminar Proceedngs18-19 September 2003. P.7

[3]Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Côte d’Ivoire, Equatorial Guinea, Gabon, Mali, Niger, Senegal and Togo.

[4]Article 1 of the Treaty.

[5]Article 3 of the Treaty

[6] OHADA Treaty, Article 42

[7]See Article 2

[8]CCJA, Arret N° 010/2003 du 19 juin 2003: Monsieur D. G. et Madame D. J. c/ Société SOTACS.- Le Juris-Ohada, n° 3/2003, juillet-septembre 2003, p. 30 ; Recueil de jurisprudence CCJA, n° 1, janvier-juin 2003, p. 49.

[9]Article 25 of the Uniform Act on Arbitration

[10]The Indian Supreme Court in Renusagar Power Co Ltd v General Electric Co., AIR 1994 SC 860 refused to impeach an award on the merits of the case.

[11]A. VAN DEN BERG, The New York Arbitration Convention of 1958, 2nd Edition (Deventer: Kluwer Law and Taxation Publisher, 1994) p. 269

[12]UAA, Article 14

[13]1) Cour d’Appel du Centre, Arrêt no. 482/CIV./05-06 du 23 aout 2006: AXA Assurances SA c/ Amicale du 18 (Unreported); 2) Cour d’appel du Centre, Arrêt no. 120/CIV/05-06 du 07 decembre 2005: La Société Cotonniere industrielle du Cameroun SA (CICAM) c/ La Société de Development du Coton au Cameroun SA (SODECOTON (Unreported)); 3) Cour d’appel du Centre, Arrêt no. 121/CIV/05-06 du 07 decembre 2005, CICAM c/ SODECOTON (Unreported); 4) Cour d’appel du Centre, Arrêt no. 305/CIV/05-06 du 07 decembre 2005, CICAM c/ SODECOTON

[14]A. REDFERN & M. HUNTER, Law and Practice of International Commercial Arbitration, 4th Edition ,London, Thomson Sweet & Maxwell, 2004, p. 5.

[15]Ibid, p.7

[16]Arrêt no. 061/CC du 04 Juillet 2005

[17]P. POUGOUE, J. TCHATCHOUA, A. FENON, Droit de l’Arbitrage dans l’Espace OHADA, Yaounde, Presses Universitaires d’Afrique, 2000, para. 256

[18]That is precisely when fraud, duress and misrepresentation are claimed.

[19]A. VAN DEN BERG, loc. cit., pp. 282 -283.

[20]P. POUGOUE et al. op. cit., para. 257

[21] Professor Claire Dickerson is a Professor of Law at Tulane Law School and has written extensively on OHADA and its Uniform Acts

[22]Ibid

[23]Arrêt no. 1060 du 25 Juillet 2003

[24]D. DI PIETRO & M. PLATTE, Enforcement of International Arbitration Awards: the New York Convention of 1958 , London, Cameron May, 2001, p. 163

[25](1995) Volume XX, YBCA, p. 671

[26]China International Economic and Trade Arbitration Commission

[27]Article 3 of the Uniform Act on Arbitration

[28]A. REDFERN & M. HUNTER, op. cit., p. 450.

[29](1982) VII Yearbook Commercial Arbitration 382

[30]Kompetenz-Kompetenz is a theory whereby an arbitral tribunal rules on its own jurisdiction on questions of its competence to entertain the issues before it especially the existence or validity of the arbitration agreement.

[31]SAFIC ALCAM v. Complexe Chimique Camerounaise, FOSFA International Award of Arbitration no. 3823 dated 14th June 2002 (Unreported).

[32]Arrêt no. 061/CC du 04 Juillet 2005: Complexe Chimique Camerounaise c/ SAFIC ALCAM SA

[33]A. VAN DEN BERG, op. cit., p. 312.

[34]A. REDFERN & M.HUNTER, op. cit. pp.528

[35]D. DI PIETRO & M. PLATTE, op. cit. pp. 148-149.

[36]Ibid, pp. 448 -449.

[37]Oberlandesgericht Dresden no. 11 Sch 0019/05 of 15 March 2006, published in the German Arbitration Journal (SchiedsVZ) 2006, p. 166. In this case the court relied on Section 1028(1) of the German Civil Procedure Law that the defendant had been properly served.

[38]P. POUGOUE et al, op. cit., para. 260

[39]A. VAN DEN BERG, op. cit., p. 300.

[40]Ibid., p.302.

[41]Ibid., p.297

[42](1999) XXIV Yearbook Commercial Arbitration 739

[43]The Bremen Court of Appeal’s decision of 30th September 1999 in [2001] 4 Intl.A.L.R. N-26.

[44]A. VAN DEN BERG, op. cit., p. 310.

[45]This is so especially in Cameroon where the format for judgments and rulings are different in the French speaking regions and the English speaking regions where Civil law and Common law are practiced respectively.

[46]That is Article 2 and Article 26 paragraph 5

[47]‘Ordre public international’. Public policy ‘… covers those principles and standards which are so [sacrosanct] as to require their maintenance at all costs and without exception’ (part definition of The International Law Association on International Arbitration cited in J.D. Lew et al., op. cit, 422.

[48]OHADA member States are all civil law countries except Cameroon which has both civil law and common law.

[49]J. COLLIER, Conflicts of Laws, 2nd Edition, Cambridge, Cambridge University Press, 1994 p. 359.

[50]Di Pietro & Platte, op. cit., p. 179.

[51]G. KENFACK, “La notion d’ordre public international dans l’arbitrage OHADA” (2005), Revue Camerounaise de l’Arbitrage no 29-Avril-Mai-Juin 2005, p.3

[52]F. TERRE, P. SIMLER, Y. LEQUET, Les Obligations, 7th Edition, Dalloz, p.346

[53]Article 30.6 CCJA Rules of Arbitration

[54] A. ASSI-ESSO “L’ordre Public International dans l’Acte Uniforme de l’OHADA Relatif a l’Arbitrage” (2002) www.ohada.com,  OHADATA D-09-02

[55]G. KENFACK, loc. Cit. p.3 In Arrêt no. 46 rendu le 3 Juillet 1985: Republique du Senegal c/ Express Navigation S A (Unreported), the Supreme Court of Senegal relied on its internal public policy to rule that there is no breach of public policy while in Société Nationale pour la Promotion Agricole (SONAPRA) c/ ADEOSSI et Fils (Arrêt no. 64 rendu le 06/09/1985) the Court of Appeal in Cotonou relied on Article V(2) of the New York Convention to set aside the award.

[56]Article 2 of the Uniform Act on Arbitration

[57]A. VAN DEN BERG, op. cit., p. 370.

[58]B. MARTOR, N. PILKINGTON, D. SELLERS, & S. THOUVENOT, Business Law in Africa: OHADA and the Harmonization Process, 2nd Edition, London,  GMB Publishing Ltd, 2007, p.258

[59]The concept is for example embodied in French law, the French Decree Law no. 81-500 of May 12, 1981, Art. 1502.5

[60]P. POUGOUE et al. op. cit.,  p.152

[61]K. BERGER, International Economic Arbitration (Deventer: Kluwer Law and Taxation Publisher, 1993) p. 671.

[62]P. POUGOUE et al. , op. cit., para. 260

[63]J. LEW, L. MISTELIS, S. KRÖLL, Comparative International Commercial Arbitration, Hague, Kluwer Law International, 2003 p. 723.

[64]A. VAN DEN BERG, op. cit., p. 360.

[65]Ibid, p. 367.

[66]R. PERSCHBACHER & D. BASSETT, “The End of Law”, (2004), 84 Boston University Law Review 1 p.13

[67]J. LEW, L. MISTELIS, S. KROLL op. cit. 731

[68]F. CONA, “Application of Online Systems in Alternative Dispute Resolution” (1997), 45 Buffalo Law Review  975, p.982.

[69]Bayerisches Oberstes Landesgericht no. 4Z Sch 35/02 of 13/03/2003; Oberlandesgericht Köln no. 9 Sch 13/99 of 15 February 2000; Bayerisches Oberstes Landesgericht no. 4Z Sch 5/04 of 23 September 2004; Federal Court of Justice no. III ZB 50/05 of 23 February 2006.

[70]Oberlandesgericht Bremen, cited in Lew, Mistelis & Kröll, op. cit., pp. 728 729

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