OHADA’s mission is to create a legally and judicially harmonized community space through the implementation of a simple and modern law to facilitate business activity.
However, due to the saturation of the courts and the endemic corruption of the justice system, alternatives to the legal system have appeared in recent years. The objective is to find a way out of the conflict that allows avoiding the “court case”.
OHADA published on November 23, 2017, two very important uniform acts: the one on arbitration and the one on mediation. To date, they constitute the two alternatives for settling disputes in OHADA countries.
One of OHADA’s objectives is to promote the settlement of disputes arising from the application of the Uniform Acts by recourse to alternative dispute resolution (ADR). Arbitration by OHADA would allow judgments to be rendered in the country of the dispute. Should African cases be judged in the Paris or London arbitration courts? This is the case even when the dispute is between an African State and a foreign company and relates to the non-performance of a contract subject to the law of that State.
MARDs therefore allow you to resolve your disputes in a more rapid and appropriate manner.
– This is detailed by Narcisse AKA, Alain Fénéon and Jean-Marie TCHAKOUA in their book on the Law of Arbitration and Mediation in Africa, which emphasizes the advantages and disadvantages of ADR. Some ADR processes, such as collaborative law, allow the parties to enter into a dialogue in order to clearly define their expectations and put an end to their conflict, offering the parties a space for consultation in order to obtain what they want.
– Moreover, even if judges are bound to apply the law, there are judicial hazards depending on the quality of the case, subjectivity factors or the honesty of the magistrate. However, ADR has the advantage of bringing the parties together and negotiating with less risk than the judicial route.
– As a general rule, ADR allows for the dispute to be resolved in a much shorter period of time than through the court system.
– Far from being subject to the principle of publicity of judgments and debates, ADR favors the confidentiality of exchanges and awards.
In a country like the Democratic Republic of Congo, where justice is a real deterrent for investors, the use of ADR remains unknown to economic operators and even to some legal professionals.
This is why a new international court of arbitration and mediation based in Kinshasa has just been created. This “CENTER FOR AMICABLE DISPUTE SETTLEMENT”, abbreviated to C.R.A.D., is a real alternative to the much maligned Congolese state justice system. This new and truly impartial framework will help secure and improve business in the DRC and in Africa.
We will come back in detail on this center in our next issues.