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OHADA - Organisation for the Harmonization of Business Law in Africa


OHADA (in English) - Organisation for the Harmonization of Business Law in Africa.
OHADA – fr. Organisation pour l'Harmonisation en Afrique du Droit des Affaires.
OHADA is a system of business law and implementing institutions adopted by West and Central African nations.
OHADA includes 17 countries:
- all members of the WAEMU (fr. – UEMOA) (8): 7 of them French-speaking - Benin, Burkina Faso, Côte d'Ivoire, Mali, Niger, Senegal, Togo, and 1 Portuguese-speaking - Guinea-Bissau;
- all members of CEMAC (6): 5 of them French-speaking - Cameroon, Republic of Congo, Gabon, Central African Republic (CAR), Chad, and 1 Spanish-speaking – Equatorial Guinea;
- as well as 3 French-speaking countries: Guinea, the Democratic Republic of Congo (DRC) and the Comoros.
Working languages of the OHADA: French, English, Spanish, Portuguese.

OHADA legislation is purely commercial. The main purpose of OHADA is unification and updating of business law to provide juridical and judicial security for economic activity in its member-states, strengthen investor confidence and promote international trade.
OHADA was established in accordance with the Treaty on the Harmonization of Business Law in Africa on October 17, 1993 in Port Louis, Mauritius. The OHADA treaty entered into force in September 1995. 15 years after signing, this treaty was revised and updated at the summit of the Heads of State in Quebec on October 17, 2008. It clarified procedural issues. OHADA headquarters is located in Yaoundé (Cameroon).

The primary goals of OHADA are: to provide opportunities for each member-state to use common rules adapted to the current economic conditions to facilitate the activities of enterprises; improvement of arbitration as an operational tool of commercial dispute resolution; improve the training of judges and their assistants; Promoting African Economic Community.
The specific tasks of OHADA
- Elaboration and adoption of common, modern and simple legal rules that are suitable to the international economic environment as well as the realities of its Member States and proper training of legal and judicial staff,
- Promotion of a speedy and independent justice, backed by appropriate procedures
- Promotion of arbitration and other alternative dispute resolution methods

The judicial system of OHADA is built on a legal model of France, as almost all of its members are former colonies of France, except Guinea-Bissau (former Portuguese colony), Equatorial Guinea (a former colony of Spain) and the DRC (former colony of Belgium).

The OHADA structure consists of 5 institutions:
-- The Conference of Heads of State and Government: It is a political body that meets when necessary to give general guidelines and impetus needed for the harmonization of business law in Africa.
-- The Council of Ministers: it comprises, for each Member State, the Minister in charge of Justice and that of Finance. This is the deliberative body of the Organization. It defines specific guidelines and program of activities, allocates the budget and supervises the functioning of institutions. It also performs normative functions of adopting Uniform Acts, Regulations or Decisions within the scope of its powers as provided in the OHADA Treaty. Uniform Acts adopted by the Council of Ministers are directly applicable in Member States and supersede any domestic law which is contrary or identical.
-- The Permanent Secretariat is the executive body of OHADA. Its headquarters are located in Yaoundé (Cameroon). It ensures the overall coordination of the functioning of institutions and the harmonization process. To this end, it prepares draft Uniform Acts, Regulations and Decisions, coordinates and organizes the sessions of Council of Ministers, and assists its President. The Permanent Secretary also represents the Organization in its interactions with third parties.
-- The Common Court of Justice and Arbitration (CCJA): it is the common and supranational judicial body headquartered in Abidjan (Côte d’Ivoire). Composed of thirteen judges, it is the only jurisdiction that has the competence to review, in last resort, all decisions rendered by courts within Member States on matters relating to OHADA law. On arbitration, it intervenes within its administrative functions and gives Opinions on the interpretation and uniform application of the Treaty, Uniform Acts, Regulations and Decisions.
-- The Higher Regional School of Magistracy (ERSUMA) based in Porto Novo (Benin): it is a center for training, capacity-building, research and documentation on OHADA business law. ERSUMA relies on specialists in Member States to carry out its activities. It provides trainings at its headquarters, in other Member States or remotely via videoconference. The target for training includes all legal professionals (judges, lawyers, bailiffs, corporate lawyers, accountants etc.).
In each of the Member States
OHADA National Committees: They are the focal points of OHADA in each Member State. They are both a consultation forum and the backbone as far as the preparation and promotion of OHADA law is concerned. Because of their diversity, as they sometimes include the public sector and the private sector, OHADA National Committees take part in the preparation of Uniform Acts at national level and monitor their implementation as well.

The basic document of OHADA is the Treaty on the harmonization of Business Law in Africa (fr. Traité Relatif à L'harmonisation en Afrique du Droit des Affaires), signed on 17 October 1993, and the Treaty on its revision (fr. Traité Portant Révision du Traité Relatif À L'harmonisation du Droit Des Affaires en Afrique) on October 17, 2008
The main documents on the regulation are two documents of the Common Court of Justice and Arbitration (CCJA): the arbitration rules, adopted in 1996, revised and adopted on November 23, 2017, which entered into force on February 23, 2018; and rules of procedure of 1996 and amendments and supplements to it adopted in 2014.
General rules for the member-states of OHADA come from Uniform Acts (fr. L'Acte Uniforme), adopted by the OHADA’s Council of Ministers. Adopted Uniform Acts are directly applicable and binding in the member-states, despite any provisions that are contrary to domestic law.

In OHADA 10 Uniform Acts have been adopted to date that cover three categories of enterprises regulation:
1) commercial activity, includes uniform acts on general commercial law, organizing securities, on contracts for carriage of goods by roads,
2) registration and accounting of commercial enterprises, includes uniform acts on commercial companies and Economic Interest Groups – EIG, on Cooperatives, on the organization and harmonization of accounting and Accounting Law and Financial Reporting;
3) settlement of commercial disputes and collection of trade receivables, includes uniform acts on arbitration law, on Simplified Debt Collection Procedures and Enforcement Proceedings, on bankruptcy proceedings, on Mediation.

1) Commercial activity

1. Uniform act on General Commercial Law (fr. Acte uniforme révisé portant sur le droit commercial général). 307 articles. Adopted on April 17, 1997, entered into force on January 1, 1998. New edition adopted on December 15, 2010, entered into force on May 16, 2011.
The Uniform Act on General Commercial Law defines and regulates:
- the status of the trader, person carrying out acts of trade by nature as a profession;
- the status of the entrepreneur, individual entrepreneur, who, upon simple declaration, exercises a professional civil activity, craft or agricultural. The latter is subject to a simplified and adapted legal regime, to promote the transition of actors from the informal to the formal economy;
- the Register of Commerce and Securities (RCS, fr. le registre du commerce et du crédit mobilier – RCCM) which receives in particular the registrations of commercial natural and legal persons, the declarations of activity of entrepreneurs and the registration of security rights. The RCCM is held by the registry of the competent court in commercial matters or the competent body designated by the State Party; it is integrated, at the level of each member state, in a national register, which itself feeds a regional register kept by the CCJA. The computerization of the RCS aims to promote access in real time to reliable and up-to-date information on all the economic players in the OHADA area and the status of the guarantees granted;
- the professional lease, a statute which extends to all professionals carrying out their activity in a leased premises, the protection formerly reserved for tenant merchants;
- the business, consisting of all the means which allow the merchant to attract and retain a clientele;
- the commercial intermediary (commission agent, broker or sales agent), a natural or legal person acting professionally on behalf of another person in order to conclude with a third party a legal act of a commercial nature;
- commercial sale, contract for the sale of goods between traders, including contracts for the supply of goods intended for manufacturing or production activities.
The Uniform Act on General Commercial Law of 15 December 2010 repeals and replaces the initial uniform act relating to general commercial law, adopted on 17 April 1997. In addition to the establishment of the entrepreneur's statute, its most significant innovations include the redefinition of the act of commerce, the recasting of the limitation period,and taking into account of electronic procedures and the computerization of the RCS.

2. Uniform act organizing securities (About guarantee rights) (fr. Acte uniforme révisé portant organisation des sûretés). 228 articles. Adopted on April 17, 1997, entered into force on January 1, 1998. New edition adopted on April 15, 2010, entered into force on May 16, 2011.
The Uniform Act organizing securities may be understood as an assignment of assets to a creditor in order to secure the performance of an obligation or a set of obligations. There are essentially three types of securities:
- personal security, which includes the surety, the guarantee and the autonomous counter-guarantee;
- securities over movable properties including the right of retention, property withheld or transferred as collateral, pledge and liens;
- mortgages which are securities over immovable properties.
The Uniform act organizing securities of 15 December 2010 repeals and replaces the original Uniform Act of April 17, 1997 organizing securities. It substantially modernizes the legal framework for credit guarantees: the range of collaterals that may be used is widened, the credit information system is modernized and the new UA establishes the profession of security agent, in charge of managing securities for others starting from the creation of securities to their foreclosure. The new law also simplifies the procedures for creating securities while improving efficiency, especially with the provision of alternative mechanisms for enforcing real securities.
The reform of securities law reflects the will of OHADA Member States to strengthen the confidence of economic actors.

3. Uniform act on contracts for the carriage of goods by road (UACCGR, fr. Acte uniforme relatif aux contrats de transport de marchandises par route). 31 articles. Adopted on March 22, 2003, entered into force on January 1, 2004.
The UACCGR applies to all road transportation contracts where the place of collection of goods and the place of delivery, as specified in the contract, are situated either within the territory of an OHADA Member State or in the territory of two different States of which at least one is a member of OHADA, excluding the transportation of dangerous goods, funeral transportation, moving transportation, or any other transportation under international postal conventions.
The Uniform Act applies regardless of the domicile and nationality of the parties to the contract of carriage. It regulates the conclusion, performance, liability and litigation arising from transportation.

2) Registration and accounting of commercial enterprises

4. Uniform act on the Law of Commercial Companies and Groups of Economic Interests (fr. Acte uniforme relatif au droit des sociétés commerciales et du groupement d'intérêt économique – GIÉ). 920 articles. Adopted on April 17, 1997, Entered into force on January 1, 1998. New edition adopted on January 30, 2014, entered into force on May 5, 2014.
The Uniform Act on Commercial Companies and EIG of November 30, 2014, which replaces the initial text of April 17, 1997, introduces many innovations in the formation and life of commercial companies in the geographic area of OHADA.
The first part of the text sets out general provisions, common to all forms of commercial companies: rules of incorporation and operation, directors' liability, legal ties between companies, transformation, merger, demerger, partial contributions of assets, dissolution, liquidation, nullity of the company and of the social actions, various formalities and rules of publicity. In addition to the important provided clarifications, the new Uniform Act on Commercial Companies and EIG devotes extra-statutory agreements, which have become common in business life, as well as providing for the appointment of a provisional administrator in the event of a crisis between partners making normal operation of the company impossible.
The second part regulates the various forms of commercial companies: general partnership (fr. La Société en Nom Collectif – SNC), simple limited partnership (fr. La Société en Commandite Simple – SCS), limited liability company (fr. La Société à Responsabilité Limitée – SARL), the joint stock company (fr. La Société Anonyme – SA), joint venture, de facto company, group of economic interest (GIE) and, major innovation, simplified joint stock company (fr. La Société par Actions Simplifiée – SAS). The new text also introduces important provisions of stock market law, as well as improving the treatment of regulated agreements in order to strengthen transparency and control, but also improve corporate governance. In addition, the possibility for shareholders and directors to participate by videoconference in meetings of the general meeting or of the board of directors is established.
The third part enacts, finally, incriminations relating to the formation, the life, the dissolution and the liquidation of the commercial companies, being specified that the sanctions relating to the offenses thus envisaged must be specified by the national law of each State Party.

5. Uniform act on Cooperatives (fr. Acte uniforme relatif au droit des societes cooperatives). 397 articles. Adopted on December 15, 2010, entered into force on May 15, 2011.
The Uniform act on Cooperatives responds to a request strongly expressed by the members of the OHADA area who, not being subject to the rules of commercial companies, wanted specific rules harmonized on a regional scale.
The Uniform act on Cooperatives applies to all cooperatives, subject to specific national or regional rules, applicable to cooperative companies carrying out banking or financial activities.
It provides for two types of cooperatives to be chosen by entrepreneurs: the simplified cooperative society (fr. société coopérative simplifiée) and the cooperative society with a board of directors (fr. la société coopérative avec conseil d’administration). It clearly distinguishes the rules common to both as well as the rules specific to each type of cooperative. Some characteristic features of these forms of business organization are: voluntary membership open to all without discrimination, democratic power exercised by co-operators, autonomy and independence, education, training and informing the cooperator, voluntary commitment to the community, cooperation between organizations of a cooperative nature.

6. Uniform act on Accounting Law and Financial Reporting (fr. Acte uniforme relatif au droit comptable et à l’information financière). 113 articles. Adopted on March 24, 2000, entered into force on January 1, 2001. New Edition adopted on January 26, 2017, entered into force on January 1, 2018.
Adopted to replace the Uniform Act of March 24, 2000 On The Organization And Harmonization of Companies Accounting the new Uniform Act on Accounting Law and Financial Reporting is a renovated legal corpus to which the OHADA revised accounting system (fr. système comptable OHADA – SYSCOHADA) is annexed. The revised SYSCOHADA includes, on the one hand, the OHADA general chart of accounts and, on the other hand, the accounting system for the consolidated and combined accounts.

For the SYSCOHADA accounting system, a mobile application has been developed - SYSCOHADA Pro, which can be downloaded via Google Play

To learn the accounting system SYSCOHADA will help the site Formation Comptabilité

Taking into account the developments in international accounting standardization and the growing financial needs of the economies of OHADA member countries, the Uniform act on Accounting Law and Financial Reporting establishes accounting standards, the chart of accounts, the rules for keeping accounts, presentstion of financial statements and financial reporting. It covers the personal accounts of entities, natural and legal persons, consolidated accounts and combined accounts; it also contains criminal provisions.
The new text thus meets the major expectations of figure professionals and economic players. It also echoes a prescription from the Conference of Heads of State and Government of the Member States of OHADA which, meeting on October 17, 2013, had “noted the coexistence of two accounting standards in the geographical area OHADA and instructs the Council of Ministers to continue the revision of the Uniform Act on the organization and harmonization of Companies Accounting to make it the unique standard in force in the States Parties ”.
Modern and consistent with the other Uniform Acts, the new Uniform Act on Accounting Law and Financial Reporting stands out, among other things, by:
- the maintenance, alongside the normal system, of the minimum treasury system, reorganized in order to offer the possibility of keeping a simplified accounting in accruals, and the correlative abandonment of the intermediate system which constituted the reduced system;
- the substantial increase in the amount of turnover below which small economic entities are eligible for the minimum cash system;
- clearly expressed recognition of the specificity of the accounting system for the regulated sectors while reaffirming that these sectors remain subject to OHADA accounting law;
- the obligation imposed on entities listed on a stock exchange or making a public offering to produce, for the financial markets and other sectoral regulatory bodies, financial statements in accordance with international financial reporting standards (IFRS), in addition to their individual financial statements in SYSCOHADA standards or according to the accounting standards specific to their activities;
- the recognition of transitional provisions, to allow an efficient transition to the new benchmark.

3) Settlement of commercial disputes and collection of trade receivables

7. Uniform act on arbitration law (fr. Acte uniforme relatif au droit de l'arbitrage). 36 articles. Adopted on March 11, 1999, entered into force June 11, 1999. New Edition adopted on November 23, 2017, entered into force March 15, 2018.
Adopted on 23 November 2017 to replace the initial text of 11 March 1999, the new Uniform Act on Arbitration Law constitutes the ordinary law of arbitration for all OHADA Member States. It lays down the principles of the law of arbitration, regulates the different phases of the procedure, lays down the conditions for the recognition and enforcement of arbitral awards, and organizes the remedies available against awards, namely appeal to set aside, appeal to revise the award or third-party opposition.
The new Uniform Act seeks to enhance transparency, promptness and efficiency of arbitral proceedings in OHADA Member States.
Within the OHADA system, the arbitration under the Uniform Act coexists with the specific institutional arbitration administered by the CCJA governed by the new Arbitration Rules of 23 November 2017. Furthermore, the OHADA legal arsenal for alternative dispute resolution has been reinforced with the adoption of a Uniform Act on Mediation.

8. Uniform act on Simplified Debt Collection Procedures and Enforcement Proceedings (fr. Acte uniforme portant organisation des procédures simplifiées de recouvrement et des voies d'exécution). 338 articles. Adopted on April 10, 1998, entered into force on August 31, 1998.
The Uniform Act organizing simplified recovery procedures and measures of execution (UASRPME) organizes two simple legal procedures which a creditor may implement to compel its debtor to honor its commitment: the injunction to pay and the injunction to deliver or return a property.
In the area of execution measures, the UA organizes the rules on forceful execution and regulates the various constraint measures: provisional seizure (of tangible assets, debts, shareholders rights and movable properties) and enforceable seizures (seizure and sale, garnishee, attachment of earnings, attachment of immovable property).
The Council of Ministers of OHADA authorized the Permanent Secretary to assess the implementation of the UASRPME, with a view to further improve the legal framework on debt recovery and forceful execution.

9. Uniform act on bankruptcy proceedings (fr. Acte uniforme portant organisation des procédures collectives d'apurement du passif). 258 articles. Adopted on April 10, 1998, entered into force January 1, 1999. New Edition adopted on September 10, 2015, entered into force December 24, 2015.
The Uniform Act organizes the procedures for the prevention and treatment of enterprises' difficulties by decision and under judicial supervision (conciliation and preventive settlement, before cessation of payments, receivership and liquidation of property, after cessation of payments), defines the applicable regulations to legal representatives and defines the property, professional and criminal sanctions applicable to the debtor and managers of the defaulting company (personal bankruptcy and bankruptcy).
Collective procedures apply to traders (natural and legal persons), entrepreneurs, non-commercial private legal entities, as well as public enterprises in the form of private legal entities.
In view of the conclusions of the audit of the application of the initial Uniform act on bankruptcy proceedings (adopted on April 10, 1998), the new text takes into account the precepts of the economic analysis of law and international best legal practices. Its main innovations concern:
- the definition of key concepts to facilitate the application and interpretation of the new Uniform act on bankruptcy proceedings;
- expanding the scope of new Uniform act on bankruptcy proceedings;
- the establishment of a conciliation procedure to promote the safeguarding of businesses;
- the establishment of simplified procedures for preventive settlement, receivership and liquidation of property adapted to small economic entities;
- the establishment of deadlines whose non-compliance is penalized, in order to reduce the duration of the implementation of collective procedures and promote the achievement of the objectives pursued;
- the establishment of a legal framework for the activity of legal agents, that is, experts in preventive settlement and trustees, in order to guarantee competence, ethics and supervise remuneration;
- the establishment of a "fresh money" or new money privilege for those who make new loans to a troubled business to facilitate its restructuring or recovery;
- clarifying the priority order of creditors;
- the establishment of a new cross-border insolvency regime based on the UNCITRAL (United Nations Commission on International Trade Law) Model Law.
The new text thus tends to strengthen the speed and efficiency of collective procedures, favor the rescue of viable businesses and the substantial payment of creditors.

10. Uniform Act on Mediation (fr. Acte Uniforme Relatif à La Médiation). 18 articles. Adopted on November 23, 2017, entered into force on March 15, 2018.
Adopted on November 23, 2017, the Uniform Act on Mediation (UAM) is the tenth uniform text adopted by OHADA. The new text fills the legislative void that existed in most OHADA Member States in the area of mediation which is an amicable mode of disputes settlement.
Inspired by the UNCITRAL Model Law on International Commercial Conciliation, the UAM adopts a broad definition of mediation, conceived as "any process, whatever its name, in which the disputing parties request a third party to assist them in reaching an amicable settlement of their dispute, conflictual relationship or disagreement [...] involving natural or legal persons, including public entities or States ". The text also regulates the mediation process and sets out the guiding principles for the conduct of a mediation: respect for the will of the parties, moral integrity, independence and impartiality of the mediator, confidentiality and effectiveness of the mediation process. Important provisions are also devoted to the execution of a mediation agreement.