OHADA Date of Establishment: September 18, 1995

OHADA CCJA Date Operational: April 18, 1996

OHADA CCJA Seat: Abidjan, Ivory Coast

States Subject to OHADA CCJA Jurisdiction: Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Congo, Ivory Coast, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, Senegal, Chad and Togo

Number of Cases Received by the Court: Not available (over 200)

The Common Court of Justice and Arbitration (CCJA) is the court of the Organization for the Harmonization of Business Law in Africa (OHADA), one of the most successful regional legal harmonization efforts on the Continent. Unlike the other continental regional integration groups, OHADA does not seek to conform national law to an overarching treaty and successive regulations and directives, which allow national legislature some leeway. Instead, OHADA uses the integration method of issuing binding uniform acts that automatically supercede all prior and future inconsistent national laws. With the goal of creating a secure, simple and modern legal framework for the conduct of business in Africa, OHADA has issued eight uniform acts on general commercial law, commercial companies and economic interest groups, securities, arbitration, simplified recovery procedures and measures of execution, collective insolvency and accounting.

The Common Court of Justice and Arbitration ensures the consistent interpretation of the Uniform Acts, the OHADA Treaty and any regulations applying the latter. To control the interpretation of the OHADA laws, the CCJA has two roles: that of a supranational appellate-level court and that of a court of arbitration. The Court is composed of seven judges elected by the Council of Ministers from among a list made of up to two candidates nominated by each Member State. The candidates are limited to persons of at least fifteen years judicial, academic or legal practice experience.

Instead of leaving enforcement to the political arm of the Organization and limiting individual access to the Court, the OHADA system relies heavily on persons (legal or natural) to challenge national court interpretation or application of Uniform Acts. There are three ways that the CCJA can be seized of a contentious case. First, a party can appeal an appellate decision on the merits in the application of a Uniform Act. In such a case, the CCJA can quash the decision of the national court and hear the entire case again on its facts, not merely the interpretation of the OHADA legal text. The CCJA may also obtain a case from a party appealing a national court decision rejecting that party’s assertion that the matter is subject to CCJA jurisdiction. Finally, the Court receives cases from national supreme courts fulfilling their obligation to transfer all cases where the subject matter involves the application of a Uniform Act. This obligation holds true even where the defendant does not question the jurisdiction of the national court. Such national court must transfer the case to the CCJA proprio motu. These provisions all ensure that the CCJA is the final arbiter of the interpretation and application of OHADA law.

The CCJA, like most other regional judicial institutions, also provides advisory opinions upon request. The CCJA can be seized for advisory opinions in three situations. It reviews draft Uniform Acts before the Council of Ministers votes on them. Any Member State or the Council of Ministers may request it to review the interpretation or an application of the Treaty, regulations for applying the treaty or the Uniform Acts. Lastly, a lower national court hearing a case regarding the application of OHADA law or its interpretation can request an advisory opinion to assist it.

The Common Court of Justice and Arbitration is unique in the world. No other court, not even the European Court of Justice has as many powers and prerogatives as the CCJA. On the African continent, such powers on paper have not always flourished on the ground. In its judicial function the CCJA is unique in this regard as well, while its arbitral function has been less successful. From its inception in 1998 to August 2003 the CCJA in its supranational guise received 162 cases, with 57 from one year alone. In that time, the Court issued 44 decisions and 7 opinions.

While the growth in caseload of the Court during the above timeframe is indicative of the immediate inclusion of the Court in the legal systems of the Member States, it also reflects a bias that continues to be seen in the workload of the court. Of the 162 cases, 116 were from the Ivory Coast. While much of this is due to the reluctance of attorneys to bring cases to the Court far from their home jurisdictions, it is also due in part to the need to educate attorneys and others in the legal community of the workings of the CCJA, the Uniform Acts and the Treaty. In addressing this problem, OHADA is also unique. It has created a Regional Training Center for Legal Officers (ERSUMA). ERSUMA trains judges and other legal officers, including lawyers, notaries and bailiffs, as well as academics and businessmen in OHADA law. With this training, the use of the CCJA should be expanded as members of the legal communities outside of the Ivory Coast become more familiar with the CCJA and its jurisprudence.