16 COUNTRIES

5 INSTITUTIONS

9 UNIFORM ACTS

OHADA

Here…

I S O H A D A F O R L E G A L T E C H N I C I A N S ?

O R D O E S I T S E R V E O T H E R P U R P O S E S ?

AMBITIOUS GOALS

• making progress toward African unity

• creating a climate of trust in the economic systems of the contracting states

• a view to creating a new center of development in Africa

MEANS TO AN END

• harmonized, simple, modern

and adapted business law

• diligently applied

• provide legal certainty

LEGAL CERTAINTY “prediction of the incidence of the public force through the

incidence of the courts” (Holmes)

It is best served by a set of laws which are:

comprehensive

definite

coherent

diligently applied

INCREASED LEGAL

CERTAINTY?

• mixed response

• state level implementation is Achilles’ heel

ACHIEVEMENTS

• a new supranational organization –

no small feat

• nine uniform acts

COMPREHENSIVE SET

OF LEGISLATION

• centered on the micro-level (the productive unit)

• groundwork for better protection of property and capital formation

D IRECTLY APPLICABLE

the drafters intended the uniform

acts to be specific enough to be

directly applicable without

implementing regulation

COHERENCE

• art. 10 of the OHADA Treaty provides that

the uniform acts preempt all domestic

statutes covering the same subject matter

• the Court of Justice of the OHADA (CCJA)

guarantees the uniformity of interpretation

of the OHADA law

INNOVATIONS

• the status of entreprenant from the

Uniform Act on General Commercial Law

• institution of a movable assets registry

(RCCM) from the Uniform Act on General

Commercial Law

• elimination of the requirement of the

physical dispossession of the grantor with

respect to tangible pledged assets from

the Uniform Act on Secured Transactions

A FEW FLAWS • bankruptcy may be the “unwanted

handmaiden of commercial debt…” but

OHADA member states have no significant

level of commercial lending

• no mediation and conciliation

• only the Uniform Act on Community Owned

Business and the new Entreprenant status

acknowledge the existence of an informal

sector (which accounts for 60 to 85 % of the

GDP of the OHADA member states)

ENOUGH LEGISLATING ,

NOW ENFORCE

• further legislating activity risks

overreaching

• coordination necessary with other regional

bodies producing law such as UEMOA,

ECOWAS, CEMAC

• when markets become more concentrated

and less local, the drafters should move to

the next step

INSTITUTIONAL

CHALLENGES

• budgetary constraints

• CCJA has case backlog in part

structural and in part traceable to

the turmoil in Cote d’Ivoire

CHALLENGES SPECIFIC

TO THE RCCM

the RCCM is a movable assets registry

• computerization requires better coordination among donors, as well as between the OHADA institutions and the member states

• no reliable civil status registry in most member States

IMPLEMENTATION

CHALLENGES

• coexistence of the OHADA legislation and

non-abrogated domestic provisions

• slow and difficult appropriation by

domestic courts

OHADA REMAINS

ABSTRACT • at the state level it is virtually unknown to

accountants, money lenders, court

registries, chambers of commerce,

business registration units, micro finance

institutions, banks, insurance companies,

arbitration chambers, etc.

• necessary to inventory all institutions and

professionals impacted by OHADA in

everyday activity

JUDICIAL SPACE

• the decisions of the CCJA are directly

applicable in the member states

• no adequate mechanism for recognition

and enforcement of final judgments from

lower courts applying the OHADA within

the OHADA space

“ L E D R O I T N ’ AT T E I N T S A

P L É N I T U D E Q U ’ E N S E

R É A L I S A N T. ”

H E N R I M O T U L S K Y