When an international arbitration takes place under the auspices of the ICC, and when the
headquarters is in Paris, unless the parties expressly provide a law to govern
specifically the procedure, it is the law of the seat, that is to say that of France, which will be
in principle used to govern procedural matters, whether the Arbitrators or
parties are French or not.

The French rules of the arbitration procedure are provided for in the Code of Procedure
French civilian. However on May 1, 2011, the new Decree n ° 2011-48 of January 2011
enters into force, modifying certain procedural rules which have been previously adopted
by Decree No. 81-500 of 1981.

Regarding appeals against arbitral awards, the new law of 2011 provides
certain innovations in the fields of national and international arbitration.

I. In national arbitration

According to the old law of 1981, the direct appeal of an arbitration award was the rule and it was up to the parties to provide otherwise by agreement (1). This was completely reversed in the new 2011 law: an award cannot be appealed unless the parties agree otherwise (2).

Such an appeal can be brought as soon as the ICC award is rendered. However, the deadline for initiating the action has been shortened with the new law: the appeal is now only admissible if it is initiated within one month of the notification of the award (3), while the parties had, under the old law, up to a month from the service of the sentence affixed to the exequatur (4) to do this.

Under the old law and the new one, the appeal brought within the time limits suspends the execution of the arbitral award (5).

II. In international arbitration

The law of 2011 unequivocally provides that an action for annulment is now the only possible action against arbitral awards, when they are made in France (6). The 1981 law also provided for this action, but it did not explicitly exclude other remedies, such as appeal (7).

It is important to distinguish between direct appeal from an arbitration award, which authorizes the Court of Appeal to modify the arbitration award, which may then remain enforceable, and an action for annulment, which annulls the award, thus no longer allowing it. '' be executed, and which can only be committed on one of the legal bases of article 1520 of the Code of Civil Procedure (8):

• 1° Le tribunal arbitral s’est déclaré à tort compétent ou incompétent ; ou
• 2 ° The arbitral tribunal was irregularly constituted; or
• 3 ° The arbitral tribunal ruled without complying with the mission entrusted to it; or
• 4° Le principe de la contradiction n’a pas été respecté ; ou
• 5° La reconnaissance ou l’exécution de la sentence est contraire à l’ordre public international.»

Although an appeal is still possible against a court decision granting or refusing
the enforceability of an arbitral award, the direct appeal of an arbitral award is now
expressly prohibited in international arbitration.

Under the old law and under the new, recourse can be brought as of the pronouncement of the sentence (9) however, once again, the period is shortened with the new law: the parties now have up to a month of the notification of the sentence to appeal (10), whereas they had until the month of service of a sentence affixed from the exequatur before (11). In international arbitration, an award must be duly served according to French procedure, and in particular through a French bailiff.

An important novelty brought by the new law is that neither the delay nor the lodging of an action for annulment suspends the execution of the sentence (12), which was formerly the case under the law of 1981 (13 ). This is tempered by the authority of the supporting judge (14) to suspend or fix performance conditions if he considers that the rights of one of the parties are likely to be seriously injured.

Two additional remarks regarding the appeal / action for annulment:

Transitional rules

On the question of which of the old or the new law determines the remedies available against an arbitral award, Article 3 of the 2011 Decree provides that:

1. In the context of national arbitration, the new rule which reverses the previous one providing for the appeal of law and the action for annulment as an exception, only applies if the arbitration agreement dates from May 1, 2011 ( date of entry into force of the Decree); Consequently, if the agreement dates after May 1, 2011, a direct appeal from the award is only possible if the parties agree, but if it dates before May 1, 2011, the appeal will be allowed, unless otherwise agreed by the parties.
2. The new rule providing that an appeal or an action for annulment can only suspend the execution of an award in the context of international arbitration applies only if the arbitration award was made after May 1, 2011. Thus, if an arbitral award is made after May 1, 2011, the time limit for initiating an action for annulment, or the appeal (of a decision granting or refusing the exequatur and not of the award itself) will not suspend the execution, but this will be the case if it is rendered after this date.
3. With the exception of a few exceptions in the transitional rules, all the provisions of the 2011 law apply from May 1, 2011. Consequently, the new shortened deadlines for initiating appeals, ie expiring in the month following the notification of the award, applies from May 1, 2011 in the context of national and international arbitration. Thus, regardless of when the arbitration agreement was concluded, the date of the arbitral award, or the date of the constitution of the court, the parties now only have until the month of notification of, no longer d 'a sentence exéquaturée (which would take longer to obtain), but a simple arbitral award, to initiate their appeal.

Notification and service of arbitral award

When is an arbitral award duly notified: service (by
bailiff) is it required or can a simple notification suffice? The question is
important to establish the starting point for the period of time for me to file an appeal.

The distinction is also of great importance in view of the fact that service on a party resident abroad necessarily increases the time for bringing an action by 2 months (15), thus granting the opposing party 3 months to initiate the action. for cancellation in the case of arbitration.

Simple notification, however, does not impose this "distance delay". In addition, it is still up to the case law to specify its form and content. This procedure is therefore less restrictive.

The previous law of 1981 only allowed one form of notification in the context of national and international arbitrations: service by bailiff (16). Simple notification was not an option.
The 2011 rules are somewhat more flexible, allowing parties to opt for simple notification in some cases:

a / International arbitration

In international arbitration, notification must be made by service by bailiff, unless otherwise agreed by the parties (17).

The question then arises: when can we consider that the parties have agreed
to proceed by simple notification? In the context of institutional arbitration, does the
adopting arbitration rules providing for notification by the institution constitutes a
agree to proceed by simple notification of the award?

A recent decision of the Court of Appeal (18) qualifies as a procedural guarantee the notification by way of a bailiff and provides that the parties must express their will to waive it unequivocally.

Consequently, although the ICC Arbitration Rules only provide for a simple notification of the award to the parties by the Secretary, the fact of adhering to such rules does not constitute a unequivocal and manifest waiver service by a bailiff and cannot suffice to constitute the legally required notification (19). At most, such a notification only relieves the CCI of its obligation to notify and does not replace that which weighs on the parties (20).

In other words, in the context of an international ICC arbitration, an award rendered in France must be duly served in accordance with French procedure, unless the parties agree otherwise, failing which no time limit for bringing an action for annulment before the Court of Appeal French will only be determined (21).

b / National arbitration

Although the Decree provides that the notification of award resulting from a national arbitration must in principle be made by service by bailiff unless the parties agree otherwise (22), its specific provisions for remedies do not, unlike to the provisions on international arbitration (see para. a. /), the same distinction.

© Weissberg & Weissberg, 2015

***

(1) Article 1482 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981

(2) Article 1489 of Decree No. 2011-48 of January 13, 2011

(3) Article 1494 of Decree No. 2011-48 of January 13, 2011

(4) According to constant national case law; Article 1486 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981

(5) Article 1496 of Decree No. 2011-48 of January 13, 2011, Article 1486 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981

(6) Article 1518 of Decree No. 2011-48 of January 13, 2011

(7) Article 1504 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981

(8) Article 1520 of Decree No. 2011-48 of January 13, 2011, and 1502 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981

(9) Article 1519 of Decree No. 2011-48 of January 13, 2011, and 1505 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981

(10) Article 1519 of Decree No. 2011-48 of January 13, 2011

(11) Article 1505 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981

(12) Article 1526 of Decree No. 2011-48 of January 13, 2011

(13) Article 1506 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981

(14) The “sitting judge” in English.

(15) Article 643 and 680 of the Code of Civil Procedure

(16) Articles 1486 and 1503 of the Code of Civil Procedure as adopted by Decree No. 81-500 of 1981

(17) Article 1519 of Decree No. 2011-48 of January 13, 2011

(18) CA Paris, pole 1, ch. 1, July 4 2013, n ° 12/08215

(19) Antoine KIRRY and Geoffroy GOUBIN, Progress in trompe l'oeil: the new text on the notification of awards made in France in international arbitration: Procedure 2014, study 5, para. 4.

(20) CA Paris, pole 1, Ch. 1, March 6, 2014

(21) Article 651 et seq. of the Code of Civil Procedure

(22) Article 1484 of the Code of Civil Procedure

When international arbitration takes place under the auspice of the ICC and where
the seat is Paris, unless the parties expressly provide for a specific law to regulate
proceedings, the laws of the seat, ie of France, are generally held to govern procedural
issues, and this, whether the Arbitrator (s) or parties are French or not.

French procedural rules for arbitration are provided in the French Civil Code of Procedure. On May 1st 2011 however, a new Decree n ° 2011-48 of January 2011 came into effect, changing certain procedural rules that had been enacted by the previous Decree N ° 81-500 of 1981.

When it comes to means of recourses against arbitral awards, the new law of 2011 provides for certain novelties in the areas of national and international arbitration:

I. In a national arbitration

Under the old law of 1981, direct appeal of an arbitral award was the general rule and it was up to the parties to provide otherwise in their arbitration agreement (1). This has been completely reversed in the new 2011 law: awards shall not be subject to appeal unless otherwise agreed by the parties (2).

Such an appeal can be brought as soon as the ICC award is rendered. However, the deadline to bring the action has shortened with the new law: the recourse is no longer admissible if not filed within a month from notification of the award (3), whereas parties had until one month from service of an award that had been opposed with the enforcement formula (4) (domesticated) under the prior law.

Under both the old and the new law, the appeal filed within the legal deadline suspends enforcement of the arbitral award (5).

II. In international arbitration

The 2011 law unambiguously sets that an action to set aside is now the only possible recourse against arbitral awards, where they've been rendered in France (6). The law of 1981 also provided for this possibility but did not explicitly exclude other recourses, such as an appeal (7).

It is important to distinguish between a direct appeal of an arbitral award, which allows the Court of Appeals to amend the arbitral award, which may still be enforced, and an action to set aside which annuls an award that could therefore no longer be enforced, and which may only be brought on one of the listed legal grounds of article 1520 the Civil Code of Procedure (8):

1. the arbitral tribunal was wrongfully retained or denied jurisdiction,
2. the arbitral tribunal was improperly constituted,
3. the arbitral tribunal ruled without complying with the mission conferred upon it,
4. the principle of due process was not complied with, or
5. recognition or enforcement of the award is contrary to international public policy. ”

Though an appeal is always possible against a court decision granting or refusing
enforcement of an arbitral award, a direct appeal of the arbitral award is now expressly
prohibited in the context of international arbitration.

Under both the old and new law, the recourse may be brought as from the rendering of the award (9), but again, the deadline has been shortened with the new law: parties now have until a month from notification of the award to commence the appeal (10), whereas they previously had until a month of service of an award declared enforceable (11). In an international arbitration an award rendered in France must be properly served in compliance with French procedures, namely by a French process server.

An important novelty of the new law is that the deadline and the filing of actions to set aside no longer suspend enforcement of the award (12), which was the case under the previous 1981 text (13). This is however tempered by the sitting judge's (14) power to suspend or set conditions for enforcement, if it considers it may seriously harm a party's rights.

Two additional issues regarding appeal / setting aside recourses:

Transitional rules

In asking which law to follow, the old or the new, in determining recourse rights against an
arbitral award, Article 3 of the 2011 Decree explains that:

1. The new national arbitration rule reversing the prior rule, which granted an of right possibility of direct appeal and made actions to set aside the exception, only applies if the agreement to arbitrate dates after May 1st 2011 (date of entry into force of the Decree) ; As a consequence, if the agreement dates after May 1st 2011 direct appeal of the award is not possible unless parties agree otherwise, but if it dated before May 1st 2011, the appeal is possible, unless otherwise agreed by the parties.
2. The new rule stating that an appeal or action to set aside may not suspend enforcement of awards in international arbitration applies only if the arbitral award is rendered after May 1st 2011.
   So, if the arbitral award is dated after May 1st 2011 the deadline or the filing of an action to set aside, or an appeal (of a decision granting or refusing enforcement and not of the award itself) will not suspend enforcement, but if the award is rendered after May 1st, it will.
3. Other than a few other exceptions in the transitional rules, other provisions of the 2011 law apply as of May 1st 2011. As a consequence, the new shortened deadline to commence recourses, ie ending a month from notification of award, applies as of May 1st in both national and international arbitration. So, regardless of when the agreement to arbitrate was signed, the award rendered or the arbitral tribunal constituted, parties now only have until one month from notification of, no longer an exequatured award (which takes longer to obtain), but of a simple arbitral award, to begin their recourse,.

Notification and Service of arbitral award

When is an arbitral award successfully notified: is service (by bailiff) required or is simple
notification enough? The question is important in assessing the starting point of the month-
long deadline to begins to recourse.

The difference is also of high importance since service to a party living abroad will necessarily increase the delay to begin a recourse by 2 months (15), therefore granting opposing party 3 months to begin setting aside action in the case of arbitration.

Simple notification, on the other hand, does not impose this additional “distance delay”. In
fact, its content and form has yet to be defined by courts. The procedure is therefore less
constraining.

The prior 1981 law allowed only one notification method in both national and international arbitration: service by way of bailiff (16). Simple notification was not an option.

The 2011 rules are slightly more lenient, allowing parties to opt for simple notification in
some cases:

a / International arbitration

In international arbitration, notification must be done by way of service through bailiff, unless otherwise agreed by the parties (17).

The question therefore becomes: when could we consider that parties have agreed to simple
notification? In institutional arbitration, does adopting arbitration rules that provide for
notification by the institution constitute agreement to simple notification of the award?

A recent Court of Appeals case (18) qualified notification by way of service as a procedural guarantee and set that parties must unequivocally manifest their will to renounce this guaranty.

As a consequence, though ICC Rules of Arbitration provide that the Secretariat shall notify arbitration awards to the parties, an agreement to adhere to such rules does not constitute unequivocal and manifest renunciation to service by bailiff and is not enough to count as notification (19). At the most, such notification by the Secretariat only releases ICC's duty of notification and does not replace the parties' obligations (20).

In other words, in an international ICC arbitration an award rendered in France must be properly served in compliance with French procedures, unless parties expressly renounce to this, or else there will be no fixed deadline for bringing setting aside proceedings in front of the French court of appeals (21).

b / National arbitration

Though the new Decree states that notification of national arbitration awards must be generally done through service process unless parties agree otherwise (22), its specific provisions on remedies do not impose such a distinction23, unlike the provisions on international arbitration (as seen in par. at)).

This is confirmed by a recent Court of Appeals decision where the only reasons stated by the
judge for not retaining the date of notification by way of registered letter with
acknowledgment of receipt was the fact that the photocopy of the receipt was illegible and
did not allow to affirm what exactly was sent and by whom24. It was solely on grounds off
evidentiary difficulties that the court retained the later date of service by bailiff as the starting
date of the month-long period to begin action.

In national arbitration therefore, it seems that the rule is less strict and parties need not
expressly renounce to notification by way of service in order to use simple notification
methods.

© Copyright Weissberg & Weissberg - 2015

***

(1) Article 1482 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(2) Article 1489 of Decree N ° 2011-48 of 13 January 2011

(3) Article 1494 of Decree N ° 2011-48 of 13 January 2011

(4) Enforced by a national court decision; Article 1486 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(5) Article 1496 of Decree N ° 2011-48 of 13 January 2011, Article 1486 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(6) Article 1518 of Decree N ° 2011-48 of 13 January 2011

(7) Article 1504 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(8) Article 1520 of Decree N ° 2011-48 of 13 January 2011, and 1502 of of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(9) Article 1519 of Decree N ° 2011-48 of 13 January 2011, and 1505 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(10) Article 1519 of Decree N ° 2011-48 of 13 January 2011

(11) Article 1505 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(12) Article 1526 of Decree N ° 2011-48 of 13 January 2011

(13) Article 1506 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(14) “Support Judge” in French

(15) Article 643 and 680 Code of Civil Procedure

(16) Articles 1486 and 1503 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(17) Article 1519 of Decree N ° 2011-48 of 13 January 2011

(18) CA Paris, pole 1, ch. 1, July 4 2013, n ° 12/08215

(19) Antoine KIRRY and Geoffroy GOUBIN, Un progrès en trompe l’oeil : le nouveau texte sur la notification des sentences rendues en France en matière d’arbitrage international : 2014 procedures, study 5, para. 4

(20) CA Paris, pole 1, Ch.1, March 6, 2014

(21) Articles 651 and onward of the Civil Code of Procedure

(22) Article 1484 of Code of Civil Procedure

(23) Article 1494 of Code of Civil Procedure

(24) CA Lyon, Ch. 8, October 14, 2014, N ° 13/03727

The practice of arbitration in China has experienced in recent years a
very rapid development. The purpose of this article is to present the
main innovations in these Rules, particularly in terms of appointment
referees.

I - The new CIETAC regulations

L’institution principale arbitrale chinoise – la CIETAC (China international economic and trade arbitration commission) – a adopté le 11 janvier 2005 un nouveau règlement d’arbitrage qui est entré en vigueur le 1er mai de la même année. L’innovation essentielle de ce Nouveau Règlement est de permettre aux parties de choisir des arbitres en dehors de la liste officielle ou “panel” publié par la CIETAC. Sous l’emprise de l’ancien règlement, le choix des parties était restreint à quelque sept cents noms inscrits sur la liste de la CIETAC. Cette limitation était l’une des principales critiques portées à l’encontre de l’institution arbitrale chinoise. Selon le nouveau règlement, la désignation des arbitres en dehors de la liste officielle peut s’applique à tout arbitre composant un tribunal arbitral : à un arbitre statuant seuls ou aux deux co-arbitres choisis par chacune des parties ainsi qu’à l’arbitre président du tribunal arbitral, désigné par commun accord des parties ou, à défaut, par le président de la CIETAC.

As a result, the parties now have the possibility to appoint arbitrators
outside the panel, subject to confirmation by the president of the
CIETAC. Although the criteria for confirmation are not stated, this
procedure seems justifiable insofar as it makes it possible to verify
the suitability of the arbitrator so appointed. It should be noted that a procedure for
confirmation of the arbitrators is also provided for by the arbitration rules of the
CCI. On the other hand, the New Regulation does not specify the modalities by
which the parties can agree to choose arbitrators outside
the CIETAC list. In the absence of contrary provisions, it therefore seems
allowed to provide for this possibility from the arbitration clause before birth
litigation.

Un point qui mérite d’être soulevé est que la CIETAC est très ouverte pour les arbitres étrangers, puisque sur la liste des arbitres, on trouve qu’un tiers des arbitres sont de nationalité autre que chinoise. L’article 13 de la loi chinoise sur l’arbitrage prévoit que les arbitres devront satisfaire à l’une des qualifications suivantes:
(1) avoir pratiqué l’arbitrage pour une période minimum de huit ans;
(2) have been a lawyer for a minimum of eight years;
(3) have been a judge for a minimum period of eight years;
(4) avoir eu une activité d’enseignement ou de recherche juridique à un niveau très élevé;
(5) disposer de connaissances juridiques, d’une pratique professionnelle dans le domaine des relations économico-commerciales, d’une activité professionnelle à un niveau très élevé et être considéré comme tel dans les milieux professionnels.

II - Arbitrations before the ICC

Chinese law allows the use of foreign arbitration institutions to
disputes with a foreign element. When the place of such arbitration is
located abroad, the arbitration clause and the corresponding awards are
protected by the New York Convention, to which China is a party, which
strictly limits the cases of their questioning by the courts.
On the other hand, when the place of arbitration is China, the arbitration clause and
the corresponding award are not covered by the New Convention
York and their validity is then assessed exclusively with regard to domestic law.
Chinese.

L’article 161 de la Loi chinoise sur l’arbitrage dispose que la mention d’une “commission d’arbitrage choisie par les parties” dans une clause d’arbitrage est une condition de sa validité. A cet égard, afin d’atténuer le risque de la voir “annulée au motif d’une référence insuffisamment explicite à l’institution d’arbitrage choisie” la CCI a décidé d’adapter sa clause type pour les arbitrages ayant lieu en Chine. Cette nouvelle formulation est la suivante : “Tous différends découlant du présent contrat ou en relation avec celui-ci seront soumis à la Cour internationale d’arbitrage de la Chambre de commerce internationale et seront tranchés suivant le Règlement d’arbitrage de la Chambre de commerce internationale par un ou plusieurs arbitres nommés conformément à ce règlement.” Néanmoins il semble que l’article 16 de la loi chinoise sur l’arbitrage est souvent interprété comme exigeant la mention d’une commission d’arbitrage enregistrée en Chine, ce qui n’est le cas d’aucune institution arbitrale étrangère. Il en découle qu’un risque d’annulation par les juridictions chinoises pèse sur les clauses prévoyant un arbitrage en Chine conformément au règlement d’une institution arbitrale étrangère. Quand à la CCI, il n’est pas clair jusqu’à maintenant si une clause prévoyant un arbitrage en Chine selon le règlement d’arbitrage de la CCI et désignant la Cour Internationale d’arbitrage de la CCI comme la commission d’arbitrage compétente serait valable en droit chinois. Cette incertitude peut poser des problèmes en pratique dans la négociation d’une clause d’arbitrage dans un contrat entre une partie chinoise et une partie non-chinoise, si la partie chinoise exige que le siège de l’arbitrage soit en Chine et l’autre partie refuse de se soumettre à une commission d’arbitrage chinoise.

Une solution a été proposée dans une conférence consacrée à l’arbitrage en
Chine, organisée par L’AIA (Association for International Arbitration) au
month of March 2009 in Brussels, it consists in designating Hong Kong as the place
de l’arbitrage en raison de son statut de Région Administrative Spéciale et la
loi chinoise sur l’arbitrage n’y étant pas applicable. Les sentences arbitrales
rendered in Hong Kong are not considered as sentences
foreigners in China. There is an agreement, which works well in practice, between
la Chine et Hong Kong du 2 février 2000 qui prévoit l’exécution en Chine des
awards rendered in Hong Kong and vice versa under very strict conditions.
similar to those of the New York Convention.

CONCLUSION

In recent years, disputes involving a Chinese party bringing before
CCI have increased considerably, although the proportion is not
very important compared to arbitrations administered by the ICC, but
the evolution is remarkable.

According to ICC statistics, about 60% of ICC arbitration awards to be executed in China are spontaneously executed by the Chinese side. The enforcement problem is no longer a major problem in China.

***

1. Article 16 of the Chinese Arbitration Law:
An arbitration agreement shall include the arbitration clauses provided in the contract and any other written form of agreement concluded before or after the disputes providing for submission to arbitration. The following contents shall be included in an arbitration agreement: the expression of the parties’ wish to submit to arbitration; the matters to be arbitrated; and the Arbitration Commission selected by the parties.
– the expression of the parties’ wish to submit to arbitration;
- the matters to be arbitrated; and
- the Arbitration Commission selected by the parties.

by Dr. Roland Amoussou-Guenou (Lawyer at the Paris Bar, Assistant Secretary of the Pan-African Council of the LCIA).
An Advisory Paper Presented by the International Law Firm SCP Weissberg

This paper was prepared for the Conference on the Arbitration of International Trade and
Investment Disputes in Africa held in Johannesburg, South Africa from 5-7 March 1997.

INTRODUCTION

A lot of preconceived ideas have been propagated concerning arbitration in Africa. Indeed, for
many practitioners and arbitrators from Western Countries, arbitration in this continent is
more or less, terra incognita.

It is true that while arbitration was developing and expanding fast all over the world, Africa
was being left behind in this race. In addition, the notable dearth of literature on arbitration in
this area cannot be denied (1).

Currently, significant steps are being taken regarding the laws and practice of arbitration in
Africa. On this basis, one must certainly admit that now the time is ripe for arbitration to
expand in this part of the world.

The purpose of this paper is to present the evolution of the arbitration laws and practices in
francophone Africa since anglophone Africa has already been very well covered (2).

African laws relating to arbitration included two main sets of rules. The first relates to the
general rules of law and the second to investment law. Both have domestic and international
sources.

Investment law contains a whole range of legal guarantees intended to attract investments. Included among these legal guarantees is arbitration. Thus “arbitration under the general rules of law” means arbitration not involving matters of investment law(3) , which is itself an important but different issue that will not be considered here.

In order to locate ourselves within the evolution of arbitration under the “general rules of law”
in francophone Africa, it may be useful to consider the early sixties as the focal point.

The early sixties coincided with the accession to political independence of most of Africa’s
sub- Saharan states. This time is also considered as the starting point of expansion of
international commercial arbitration (4).

I – The past : the background of francophone Africa’s legal systems with regards to the
“Process of legislative extension”

This rule is particular to the French colonial system. It is established by the principle of
“legislative speciality” (a), which needs to be illustrated here with some examples (b). After
which we will see that some of the difficulties with which francophone African countries have
been confronted to date, especially in the matter of arbitration legislation, originate from that
principle (c).

a) The definition of the principle “legislative speciality”

The principle of “legislative speciality” has a history that goes back a long way. Following
the Revolution of 1789, the French authorities established that “the status of the colonies are
determined by special orders” (5) .

From this time onwards, the laws applicable in France’s overseas territories were those
enacted in the Metropole and extended to these territories by a special enactment of the
colonial legislator (6).

b) The application of the principle of “legislative speciality” in the matter of arbitration: some examples.

The impact of this principle in the matter of arbitration, can be examined in the light of the
Civil Procedure (i), the Commercial Law (ii) and the Administrative Law (iii).

i) The Civil Procedure

As far as arbitration was concerned, although the French Code of Civil Procedure was
extended to francophone Africa (7), surprisingly, the provisions related to arbitration in this
Code were not applicable.

This contrasts with the English African colonies, where the Arbitration Act of England was
deemed applicable (8). The example of Kenya is a good illustration of the difference between
the legal policies of the French and English colonial authorities.

As pointed out by Mr. Justice Coudrey OBE (9), the Order in Council of 1897 which established the Protectorate of Kenya provided that the Common Law, Doctrines of Equity, and Statutes of General Application in force in England on the 12th August 1897 should apply in Kenya (meant that from the beginning, The Arbitration Act of 1889 applied in this country).

This raises the important issue of why the French colonial authorities did not extend the
arbitration legislation to their colonies? Of course such a question is not easy to answer. One
acceptable hypothesis is that during the nineteenth century, arbitration as a judicial means of
settlement of disputes on the legal basis of the parties’s agreement, did not fit in with the
French colonial policy known as “direct rule”, as opposed to the “indirect rule” of the English
colonial system (10)

The French authorities were more dictatorial in administrating their territories. Their
preoccupation at that time was to keep tight control on the resolution of disputes in their
territories (11).

The lower judicial power was delegated to the indigenous authorities but at the same time,
any powers of arbitration which might interfere with the judicial organization mentioned
above were removed from the potential users of the Code of Civil Procedure (12).

Therefore, the absence of law concerning arbitration within the legal system of the French
colonies soon after independence originates from this French colonial policy.

ii) The Commercial Law

The French Code of Commerce was extended to the former French territories of Western
(FWA) in 1907 and Equatorial Africa (FEA) in 1910 13. Also applicable to the former
territories was the law of 31st December 1925 which completed the provisions of the Code of
Commerce and declares arbitration agreement valid in commercial matters (14).

It is noteworthy that this law of December 31st 1925, was enacted after the Geneva
Convention of 1923 on arbitration agreement (15), to which France was party in the context
of what may be considered as a certain “openness” to arbitration. This “openness”, benefited
the French colonies because this law was declared applicable to them.

But paradoxically, this extension of the law of 31st December 1925 created an abnormal
situation in the legal sphere in that it produced the existence of a law admitting the validity of
arbitration agreements in commercial matters on the one hand, while on the other hand, the
rules of procedure enabling the arbitration process to work were absent.

iii) The Administrative Law

The Administrative Law represents one important particular of the French legal system
compared to the English Common Law. The French Administrative Law’s prohibition of
arbitration as a means of settlement of disputes for administrative bodies was extended to the
colonies.

To the best of our knowledge, the only exception concerns Burkina Faso (ex Upper Volta),
where a law of 17th April 1906 authorizes arbitration for settlement of disputes in the matter
of public delivery or construction (16).

c) The limitations of “legislative speciality” with regards to the difficulties raised
The legislation in the Metropole was not extended systematically to all the territories.

Furthermore, when it occurred (which was not always the case as in the matter of arbitration
in the Code of Civil Procedure), the extension of the French law in the colonies, was only
effective from a precise date, sometimes after the original legislation was enacted. Thesis
extensions became the starting point of the evolution of the African legal system.

Any modification made in the law of the Metropole was only extended to the African law if
the modification was anticipated, which was rarely the case. This is the reason why African
countries lived, and are still living in a state of law that is out of date in the “exporting
country”.

This situation added to the above mentioned legal vacuum in arbitration, results in a damaging
legal insecurity for business and trade transactions, which African judges and legislators are
trying to deal with.

II- The Present: current situation of arbitration laws in francophone Africa

The current state of arbitration of “general nature” (as opposed to arbitration of “investment
nature”) concerns two main sources, domestic (a) and international (b).

a) Domestic sources of arbitration

Following independence in the 1960’s, the majority of the new francophone African states
kept the status quo of their legal inheritance. As a result, no arbitration laws exist in their legal
systems to date (i). On the other hand, among the new African states which filled the vacuum
concerning arbitration legislation, some enacted laws related to domestic arbitration (ii) while
very few of them have promulgated laws on domestic and international arbitration (iii). In all
cases, arbitration laws in force in francophone Africa whether domestic or international, show
that “the basic connection with the parent legal system remains” (17) .

(i) African states with no arbitration laws

These are Benin (18), Burkina Faso, Central African Republic, Gabon, Guinea, Mali,
Mauritania and Niger (19). The former French law on arbitration not having been extended
to these countries, means that there is a total legislative vacuum.

However, as already mentioned above, the Law of December 31st 1925 which authorizes
arbitration clauses in commercial matters is applicable.

(ii) African states with domestic arbitration laws

Contrary to what happened in the countries where the status quo was maintained, soon after
their independence, many French speaking countries enacted legislation related to domestic
arbitration. It would be interesting to review the situation in some of the countries concerned.

- Cameroon

The legal system of this country is influenced both by the French and the English law (20). Arbitration is governed by articles of the Code of Civil and Commercial Procedure (21) which are very close to the former French law on arbitration. It is to be noted that the previously mentioned law of 31st March 1925 is also applicable in Cameroon.

- Congo

The Code of Civil, Commercial, Administrative and Financial Procedure (22) of Congo
includes only one article governing arbitration. Indeed, under article 310 paragraph 2 of said
Code, a foreign award can be granted exequatur and enforced in Congo although the
arbitration agreement and the arbitral proceedings are not regulated.

One can deduce that there is a tacit acceptance of the arbitration agreement in the Congolese
law. Although it seems that Congo is not yet party to the New York Convention on recognition
and enforcement of foreign awards, one can conclude that the solution adopted by the
Congolese legislator is concise and effective as they have not thought it necessary to enact
other provisions to enable international arbitration.

The international validity of the arbitration agreement, derived from the well established
general legal principles of separability and competence-competence on the one hand, and the
domestic recognition of the foreign award on the other hand, seem sufficient to make
arbitration effective in the Congolese legal system.

- Senegal

This country was one of the most important territories in the French colonial policy in Sub-Saharan Africa (23). Arbitration is currently regulated in Senegal, in the Code of Civil Procedure promulgated in 1964 (24). These provisions are quite similar to those of Cameroon and therefore, to the former Code of Civil Procedure of France. The law of December 31st 1925 is still applicable in Senegal.

However a new arbitration bill has already been drafted and submitted to the legislative
authorities. This law will probably be enacted in 1998.

- Chad

In this country, arbitration is governed by Ordinance of 28th July 1967, related to the Code of Civil Procedure (25). It is influenced by former French arbitration rules, like the other former French colonies. One should bear in mind that the law of 31st December 1925 is also applicable there.

- Democratic Republic of Congo (Ex - Zaire)

Although it is a francophone country, the Democratic Republic of Congo (Ex Zaire), is not a typical French colony. This country was a former colony of Belgium, which is also a French speaking country. Arbitration is regulated in The Democratic Republic of Congo (26) by articles 159 to 194 of the judicial Code of 1960 (27).

(iii) African States with international arbitration laws

To date, only three countries are concerned: Djibouti, Ivory Coast and Togo (28).

- Djibouti

The Djiboutian Code of International Commercial arbitration which was the very first African legislation on the matter of international arbitration was enacted in 1984 (29).

It is influenced by the French decree of May 12th 1981 on international arbitration. Tea
definition of international commercial arbitration and the arbitral proceedings are organized
on the same legal basis. It is also in accordance with the modern instruments on international
arbitration such as the Geneva Convention of 1961 and the United Nation Commission for

International Trade Law (UNCITRAL) Model Law. It is important to note that The Federation
of the Chambers of Commerce of the member states of the Preferential Trade Area for
Eastern and Southern African States (“PTA”) (30) decided in 1987 to create a Regional
Arbitration Center based in Djibouti. As a result, the Djiboutian Code may be of considerable
importance for arbitration in the region during the coming years.

- Ivory Coast

The Code of Civil, Commercial and Administrative Procedure of Ivory Coast of 1972 (31) does not regulate arbitration. Thus, when the tribunals of this country were to decide on the issue of the validity of the arbitration agreement, during the late eighties, they faced a serious obstacle. In the presence of contradictory decisions made by the lower courts, the chambers of the Supreme Court gathered to decide on the issue, which led to a decision of April 4th 1989 (32). According to this decision, the arbitration agreement is valid in Ivory Coast under the law of December 31st 1925.

In the light of the above the legislative authorities realized that the time had come to fill the
void in the area of arbitration in the country. This is why the law of August 9th 1993 related
to arbitration was passed.

The particular of this law is that it is nearly entirely based on the French decrees of 1980 on
domestic arbitration and 1981 on international arbitration (33).

- Togo

This country has two sets of rules related to arbitration. The first ones are subject to the decree of March 15th 1982 (34) also influenced by the former French Code of Civil Procedure.

The second are regulated by the law of 28th November 1989 which creates a Court of
International Arbitration on the model of the ICC Court of International Arbitration, in order
to promote international arbitration in Togo (35). To date, no records on arbitration
proceedings administered in Togo under the auspices of this Center have been brought to my
Warning.

b) International sources of arbitration

These concern both bilateral agreements (i) and multilateral conventions (ii).

(i) Bilateral agreements

Following the independence of the early sixties, France signed a great number of accords
with its forming colonies. They relate to co-operation in the field of justice and the enforcement
in one state of judgments handed down in another state. They also contain special provisions
regarding the recognition and enforcement of awards made in one country and “imported”
into the contracting country (36).

Although very useful in practice, these accords are not specific to arbitration, as they are
generally limited to reference to provisions of the New York Convention.

(ii) Multilateral conventions

It will be sufficient to mention The New York Convention of 10th June 1958 and the European
Convention on International Arbitration of April 21st 1961.

- The New York Convention of 10th June 1958

It has been notable success in Francophone Africa (37). As a consequence, the Geneva
protocols of September 24th 1923 and September 26th 1927, ratified by France and
applicable to its former colonies are now of limited interest.

- The Convention on International Arbitration of 21st April 1961

This Convention was drafted under the auspices of the United Nations Commission for
Europe and concerned European East-West trade. Hence, in principle, the African countries
are not covered. However, I should point out that Burkina Faso adhered to the Geneva
Convention on January 26th 1965 (38).

III - The future: The OHADA Treaty

As a consequence of what has been mentioned above, one can see that the laws in force in
Francophone Africa are not harmonized. This situation causes serious harm to regional
policies for trade and investment in the former French colonies (39).

Thus in 1963, the Ministers of Justice of the countries concerned aimed to harmonize the legal
systems they had inherited from the colonial period. This would make their legal systems
more coherent in order to facilitate their political and economic co-operation (40). Therefore,
in October 1992 in Libreville, (Gabon), the Heads of States of the Franc Zone approved the
project of a Treaty of Harmonization of Business Laws. On October 17th 1993, the draft
Treaty for Harmonization of Business Laws in Africa, was signed by fourteen member states,
and is already in force.

The Treaty is open to membership of other African countries and also to countries outside
Africa (41).

Article 3 of the Treaty creates an Organization for Harmonization of Business Laws so called
“OHADA”, composed of a Counsel of Ministers and a “Joint Court of Justice and Arbitration”
(JCJA) which will be in charge of the realization of the goals of the Treaty. The legislative
texts, termed “Uniform Acts” (42), which will be directly applicable and mandatory in the
Member States “notwithstanding any prior or subsequent domestic provision”, are the
principal means of realizing the objectives fixed in the Treaty.

The “OHADA” Treaty, attributes great importance to arbitration (43) and intends to set out
original rules in this matter. But to date, the “Uniform Act” on Arbitration has not yet been
drafted.

It seems important to emphasize the role of the JCJA (44) which has power of adjudication in
the issues of interpretation of the Treaty and also in judicial and arbitration matters.

Concerning this second power, the JCJA does not decide the dispute itself. It nominates or
confirms arbitrators, has an overview on the procedure and reviews the draft awards. Tea
JCJA also has power to grant exequatur to the final award.

In many aspects concerning arbitration, the organization and powers the JCJA seem similar to
the China International Economic and Trade Arbitration Commission or “CIETAC”, under
the auspices of which “foreign-related” arbitration is administered in China since 1995 (45).

It is noteworthy that the major concern of the Draftsmen of the OHADA Treaty was to secure
the efficiency of arbitration agreements and awards. In this respect, they found unnecessary to
provide for grounds for vacating arbitral awards, contrary to widespread understanding
elsewhere (46).

This new African System is original and audacious in that it has restricted recourse to the
JCJA against an arbitral award only at the stage of recognition and enforcement.

CONCLUSION

As we can see, arbitration in Africa must not be considered as terra incognita, although
currently, international arbitration is only incorporated into the laws of three Francophone
countries and in the “OHADA” Treaty.

Two other countries, Benin and Senegal are preparing to enact new laws on domestic and
international arbitration.

However, in general, the legislations in force in the region have no “African distinctness”.
They are very similar to the French system that they are based on, and The UNCITRAL
Model Law had no significant impact in francophone Africa, to date.

The expansion of international commercial arbitration in these countries will depend on the
enactment of modern legislations and the adhesion to the New York Convention of 1958.

In addition to this, the creation of efficient Arbitration Centers - the JCJA system still has to
prove itself - and the training of African lawyers must not be neglected.

Footnotes

1 See Tiewul S.A. and Tsegah F. “Arbitration and the settlement of commercial disputes : a
selective survey of African practice”, The International and Comparative Law Quarterly, July
1975, p. 393.

2 See inter alia, papers presented by Judge Austin NE Amissah (Ghana), Prince Bola Ajibola
(Nigeria), Stephen Kokerai (Namibia / Botswana), Geoffrey WM Kiryabwire (Uganda), Prof
David Butler (South Africa), Ian Donovan (Zimbabwe) at the Resolution of Trade and
Investments Dispute conference held in Johannesburg from 5-7 March 1997. Adde
“Arbitration in Africa”, The LCIA and Kluwer Law International, 1996.

3 On the issue of arbitration involving matters of investment law, see Roland Amoussou-
Guenou “International Commercial Arbitration in Sub-Saharan Africa : Laws and Practice”,
the ICC International Court of Arbitration Bulletin, Vol. 7/1 n ° 1, p. 63, and the footnotes…

4 See Bruno Oppetit “Philosophy of International Commercial Arbitration”, Journal Of
International Law (JDI) 1993, p. 811 and seq ...

5 See Claude Lussan, “Législation de sociétés dans les territoires d’Outre-mer et dans les
associated territories (AOF - AEF - Madagascar - Togo - Cameroon), AIDE, Copyright
by Claude Lussan, 1953, pp. 20 & seq.
This principle was officially established by the Senatus-Consult (which is the denomination of
the decisions of the Senate under the first and second French Empire) of May 3rd 1854. See
also François Luchaire in the “Manuel de droit d’Outre-mer”, Paris, 1949. Adde “Quelles
sont les lois applicables de plein droit ?”, D. 1950, Chr. p. 135.

6 For example, the Former Code of Civil procedure in force in France since 1807 was
extended to The West and Central African colonies by Decree of 15th May 1889 (see LA
1891, p. 39, J.CL Outre-mer, VI., Proc., Introduction). This rule has been reaffirmed by the
French Supreme Court. See Cass. Ch. Reunies 29th April 1959, Bull. civ. 1959, n ° 4p. 3 (PG
Yaoundé c / Fende); Bull. Civ. 1959, n ° 3, p. 2 (PG Yaoundé c / Malika).

7 See Decree of 15th May 1889.

8 See A. Allot, “Judicial and legal system in Africa”, London-Butterworths, 1962; J.
Vanderlinden, “Les systèmes juridiques africains”, PUF, p.32.

9 Mr. Justice Coudrey OBE, “Arbitation in Kenya”, paper presented at the Inaugural
Conference of the Pan- African Council of the London Court of International Arbitration
(LCIA), Nairobi, Kenya, 7- 8th December 1994, p. 1.

10 See A.J. Van Den Berg “Etude comparative du droit de l’arbitrage commercial
international dans les pays de Common Law”, Doctorate thesis in law, Aix, 1977. Adde T.
Hutchison “Africa and law. Developing legal systems in African Commonwealth nations”,
Madison, University of Wisconsin Press, 1968.

11 See J.P. Musseron, “Le pouvoir et la justice en Afrique francophone et à Madagascar”,
Paris, Pedone 1966, pp. 23 & seq ; Koffi Amega “Dix ans de droit en Afrique”, Penant 1972,
pp. 285 & seq.

12 See René Degni Segui “Codification et Unification du droit en Afrique francophone”, Rev.
Jur. et Pol. d’ Outre -mer, 1985, p. 285.

13 See decrees of 6th August 1907 and of 15th January 1910, “Legal Encyclopaedia of Black
Africa”, Les Nouvelles Editions africaines; ISTRA, 1982, part I, législation.

14 See Decree n ° 54-325 of 16th March 1954, Annotated collection of civil procedure texts and
commercial applicable in French West Africa by Gaston Jean Bouvenet, Paris,
ed. de l’Union Française, 1954.

15 See Lampue, “L’application des Traités dans les territoires et départments d’Outre mer”,
AFDI., 1960, p. 191.

16 See Alain Bockel “Les contrats administratifs : données générales, le problème de
l’arbitrage”, Encyclopédie juridique de l’Afrique, p. 265.

17 This expression also applies to the African countries of English influence. See A. Allot,
“Judicial and legal system in Africa”, op. cit, p. 54.

18 Information from Benin indicates that the Beninese authorities are preparing to pass a
domestic and international arbitration bill.

19 For more details on these countries, see Roland Amoussou-Guenou the ICC International
Court of Arbitration Bulletin, op. cit p. 64.

20 See Wendy Dorman, “Cameroon”, World Arbitration Reporter Issue 0 (1986) p. 1081.
21 See articles 576 to 601 (Book II part II)
22 Law n ° 51/83 of 21st April 1983
23 Dakar was the capital of the French empire in Black Africa.

24 See Book III, title I (arbitrations), articles 795 to 820

25 See articles 370 to 383

26 See articles 159 to 194.

27 See Decree of March 7th 1960, updated on July 30th 1985.

28 Draft arbitration Bills are currently being prepared in Benin and Senegal.

29 See Law of 13 February 1984, Rev. arb. 1984, p. 533 & seq. commented by Yves Derains.

30 The PTA was created on 21st December 1981 and came into force on September 30th
1982.

31 See Law n ° 72 833 of 21st December 1972, Official Gazette (JORCI) of 5 February
1973.

32 See Talal Massi v / Omais, April 4th 1989, Rev. arb. 1989, p. 530, commented on by
Laurence Idot

33 Law n ° 93-671, Official Gazette (JORCI) of September 14th 1993.
34 See articles 275 to 290 of the Code of Civil Procedure.

35 See Law n ° 89-31 of November 28th 1989, instituting an Arbitration Court (JORT of
January 10th 1990).

36 See Ministry of Foreign Affairs, “Liste des Traités et Accords de la France en Vigueur ….”,
Directorate of Archives and Documentation, Conservation of Treaties.

37 See List of contracting states, Multilateral Treaties, UN Secretariat General, vol 330, p.3

38 Cf. list of signatory states, Multilateral Treaties, UN S ecretariat General, doc. I UN XX
557, p. 744.

39 See Akimuni, A. M., “A plea for harmonisation of African investment laws”, African Law
Journal 1975, p. 134 & seq.

40 See Mr President Keba Mbaye, in “Harmonisation of Business law in the Franc Zone “. An
experience of judicial integration in Africa. Bulletin of the International Institute of Law
d’Expression et d’Inspiration Françaises.

41 See article 53 of the Treaty.
42 See article 5 of the Treaty.
43 See articles 21 to 26.

44 See Aboubacar Fall, “Harmonisation of Commercial Law in the Franc Zone”,
International Business Lawyer, February 1995, vol. 23 n° 2 p. 82; Pascal Agboyibor “Recent
Developments in the Planned Harmonization of Business Law in Africa”, International
Business Law Journal, 1996, n° 3, p. 30 ; Roland Amoussou- Guenou “Arbitration Pursuant
to the Treaty For Harmonization For African Business Law”, International Business Law
Journal, 1996, n ° 3, p.321.

45 See Sally A. Harpole, “International Arbitration in the People’s Republic of China under
the New Arbitratin Law”, The ICC International Court of Arbitration Bulletin, Vol. 6/N°1,
May 1995, p. 19.

46 See inter alia sections 66 and 67 of England Arbitration Act 1996, article 1504 of the
French New Code of Civil Procedure, article 34 of the UNCITRAL Model Law.