Rule of Law Informational Series

RULE OF LAW INFORMATIONAL SERIES

Uniform Business Laws in Africa: OHADA's Contribution to Legal Predictability

Date: March 28, 2012 at 10:00 AM - 11:30 AM EST

(Teleconference Only)

The American Bar Association's Section of International Law (ABA International) continues its 2011-2012 series of Rule of Law Informational Sessions. These sessions explore the notion of rule of law, which organizations are involved in fostering the rule of law, and how to get involved. The sessions are free of cost and presented in-person as well as interactive teleconferences (advanced registration is required). Each teleconference will be recorded and accessible on the ABA InternationalRule of Law Committeewebsite.

We are pleased to present this session in conjunction with the Africa Committee. The harmonization of business laws in Africa will promote sustainable economic growth. OHADA is an acronym for a phrase that is often translated into English as: “Organization for the Harmonization of Business Laws in Africa.” This organization promulgates business laws that are uniform across 16 countries of West and Central Africa; in addition, the Democratic Republic of Congo (“DRC”) has signed and ratified the treaty, but has not yet deposited the documents. These OHADA laws cover business from its formation to its winding up, including a business’s operation between those two extremes. Laws relative to formation include those on business entities including all forms from sole proprietorships to corporations, and even including cooperatives. The launching and operation of a business is covered by a commercial law, a law on accounting, another on secured transactions, and a law on carriage of goods by road. At the other end, there are laws on insolvency and bankruptcy; and on dispute resolution, this last including not only simplified judicial procedures and the execution of judgments, but also a separate law and procedures on arbitration. Pursuant to the foundational treaty, these laws are automatically part of each member-state’s internal law.

OHADA offers modern business laws that are transparent and accessible, and are in a setting that maximizes the predictability of their enforcement. While implementation is not yet perfect, OHADA has already demonstrably increased transparency and predictability within its territory. This is significant to business people within the OHADA member-states, of course, but also to foreign investors in and foreign traders with business people in the OHADA territory. For this reason, businesses in Europe and North America, and importantly elsewhere on the African continent, need to know about these laws, uniform across more than 150 million people—225 million after the DRC completes its adhesion to the treaty.

The session will begin with a short overview on OHADA. Me. Zeno will also discuss the expectations of economic operators to achieve their investments while observing good governance guidelines and the OHADA responses especially through the organization and regulation of a board as per the Uniform Act on Company law and the transparency of the accountancy as per the Uniform Act on Accountancy law.Next, Prof. Dickerson will speak on OHADA General Commercial Law, which is at the heart of the OHADA juridical regime and operates in tandem with the other OHADA statutes. It governs all commercial sales, and also provides structures designed both to increase legal security for foreign investors, and to help local businesses, whatever the nationality of their ownership, raise capital. Dr. Penda’s commentary will follow with a focus on OHADA’s impact on the rule of law. Bringing a Cameroonian perspective, Dr. Penda will also describe how OHADA has effectively shaped businesses in the region and reference some of the findings in the World Bank’s Doing Business report on OHADA. He will also touch upon and briefly present the OHADA registry’s computerization, a revolutionary improvement. Lastly, Mr. Forneris will discuss the ongoing process of modernization of the OHADA Company Act, mentioning some of the important changes that have been proposed. His presentation will complement previous experts' presentations and is particularly timely as the national OHADA commissions are being gathered by the OHADA Secretariat in Yaoundé on March 27th to review and discuss the proposed changes.

Panelists:

• Prof. Claire Dickerson: TulaneUniversityLawSchool (USA)
• Mr. Xavier Forneris: World Bank/ IFC (USA)
• Dr. Jean Alain Penda: Fubla & ACP Legal (Cameroon)
• Me. Xavier Zeno: Attorney, Jeantet & Associés (France)

ABA International Rule of Law Committee:

Jason Matechak · Steven Hendrix · Lelia Mooney · Carol Mates · Matthew Nicely · Alexandra Wrage

Africa Committee:

Ricardo A Silva· Nancy Kaymar Stafford·Roland D Abeng·Tiago Martins Cruz·Christina Theresa Holder·Angelia Wade

Co-Sponsoring International Law Committees:
ABA Young Lawyers Division(International Law Committee) ·International Securities and Capital Markets · Islamic Finance Committee·Task Force on Financial Engineering for Economic Development

Speaker Biographies

Claire Moore Dickerson is a permanent visiting professor at the University of Buea in Cameroon. She came to Tulane from the Rutgers University School of Law in Newark, New Jersey, where she was Professor of Law, Dickson Scholar, Schuchman Fellow, Co-Director of Rutgers’s Global Legal Studies program, and, later, the holder of the Visiting Lowenstein Chair.

Commended world-wide for her distinguished scholarly and teaching activity in fields such as business associations, contracts, comparative law, and international business transactions, Dickerson is also noted for her focus on the intersection between commerce and human rights.

As a student at ColumbiaLawSchool, Dickersonwas a Stone Scholar. From law school, she went to the international law firm of Coudert Brothers in New York. Following 12 years and partnership there, she became Partner of, and later Counsel to, Schnader Harrison Segal & Lewis, a Philadelphia-based firm. In 1986, Dickerson began her teaching career at St. John'sUniversitySchool of Law.

Dickerson's scholarship has applied socioeconomic principles to business-related areas of law, with a particular focus on standards of performance. Her research interests have taken her to the continent of Africa (principally Cameroon, Ivory Coast, and Senegal), and she has presented her work both overseas and at home. Active in several professional legal organizations, including the Law & Society Association and the American Society of International Law, Dickerson has served on the executive committee of the socioeconomic section of the Association of American Law Schools.

Xavier Forneris, a lawyer from France, graduated from the Universite Paul Cezanne in Aix-en-Provence with a Master of Law degree, specializing in Business Law and International Trade. He has also earned an MBA from the University of North Carolina (UNC-Chapel Hill). After having worked for 5 years as international business lawyer and lobbyist (1990-1994 inclusive), specializing in trade and investment between Europe and the US, Forneris entered the field of economic development in 1994 and has gained 17 years of experience in this field, focusing on private sector development, foreign direct investment (FDI) and related business environment reforms. He has served as staff or consultant for leading institutions including the World Bank Group, the InterAmerican Development Bank, UNDP-American Bar Association, the IRISCenter (University of Maryland), and the International Development Law Organization (IDLO).

For the past 12 years, Forneris has been working with the Investment Climate Department (or FIAS), a joint department of the World Bank, IFC and MIGA, a specialized unit providing advice and technical assistance to developing countries that want to develop the private sector and attract more foreign investment. Xavier has managed two regional programs (West/Central Africa and Middle East/North Africa) and carried out advisory projects, usually as team leader, in 45 countries across Africa, the Middle East, East Asia, Latin America and Central Europe. He has designed and launched the IFC TA project for OHADA Legal Reform, managing it for over 3 years; he continues to contribute to the OHADA project as a senior advisor.

Jean Alain Penda is Cameroonian. He holds an LLB from the University of Buéa (Cameroon), an LLM in International Corporate and Financial Law from the University of Wolverhampton (United Kingdom), and a Ph.D. from the University of Basel (Switzerland) specializing in sales and commercial law. Penda has been a Research Assistant for the Head of Private Law at the Faculty of Law, University of Basel and a Researcher for Global Sales Law, a project supported by UNCITRAL, which is headquartered at the University of Basel. He is a Director at the Foundation for a Unified System of Business Law (FUBLA) and a regular consultant for the Association for the Unification of Business Law in Africa (UNIDA) and ACP Legal, both which are non-governmental organizations promoting OHADA in Africa and OHADACinthe Caribbean. Author of several articles on OHADA law, Penda has been instrumental in disseminating information about OHADA both within member countries and to jurists in neighbouring jurisdictions.

Xavier Zenois Paris based lawyer. He has served as Senior Associate for a ten year span, with a specialization in large national and international infrastructure projects includingconstruction, mining, and public service infrastructures as well as public utilities. He devotes most of his main practice toWest and Central African countries as well as Madagascar.

He started his career as a Legal Advisor of the OHADA Permanent Secretary in Yaoundé for one year and a half in 2001-2002. During this time, he participatedin the promotion of business law harmonization in Africa, appraised how to promote investments in Sub-Saharan Africa among key stakeholders, and organized the annual OHADA Councils of Ministers.

On a daily basis, Zeno advises private operators investing in sustainable countries, especially in the mining sector. These market players are mainly Anglophone companies intending to operate in Francophone and civil law countries, particularlyOHADAState members. He primarily implements and strengthens tax, legal, and financial schemes including legal, financial and environmental risks control. Furthermore and in addition to OHADA regulation, he is also often requested to advise in tax law and labour law under different legal frameworks, enabling him to work under civil and common law systems.

Additionally, for the last ten years, he has been involved in drafting and negotiating complex contracts such as concessions, Public Private Partnerships, and Balance of Trade as well as sub-contracting for large scale construction projects (in Guinea, Madagascar, Algeria, Ivory Coast, Benin, Congo, Niger, Chad, etc.). He also had the opportunity to carry out gap analysis missions on OHADA Uniform Acts and to review and draft procurement regulations.

Lastly, he is on the arbitrators list of theCommon Court of Justice and Arbitration for 2012.

Bibliography Provided by Prof. Claire Dickerson

[Draft] Tumnde, Idris, Penda & Dickerson, Unified Business Laws for Africa (Dickerson, ed.; 2d ed., forthcoming 2012)

Articles

Amegatcher, Andrew Ofoe (2008). The OHADA Treaty from an Anglophone Perspective. Ghana Policy Journal, volume 2, 111-23.

Akinbote, Akin (2008). OHADA Treaty and Law by Anglophone States. Available from:

Akinbote, Akin (2010). The OHADA and Ecowas Treaties as Tools for Regional Integration and Regulatory Reforms. Available from:

Akin-Olugbade, Adesegun A. (2007). The African Development Bank’s Contribution to the Harmonization of Investment Laws in Africa and Prospects for Future Harmonization of Such Laws.American Society of International Law Proceedings, volume 101, 451-54.

Azar, Ziad Raymond (2008). Bankruptcy Policy: An Empirical Investigation of 50 Jurisdictions Worldwide. The American Bankruptcy Journal, volume 82, 407-490.

Bamodu, Gbenga (1994). Transnational Law, Unification and Harmonization of International Commercial Law in Africa. Journal of African Law, volume 38, 125-43.

Blackett, Adelle (2011). Labor Law and Development: Perspectives on Labor Regulation in Africa and the African Diaspora: Beyond Standard Setting: a Study of ILO Technical Cooperation on Regional Labor Law Reform in West and Central Africa. Comparative Labor Law & Policy Journal, volume 32, 443-91.

Blackett, Adelle (2011). The paradox of Ohada's transnational, hard law, labour harmonization initiative. Social regionalism in the global economy. New York: Routledge.

Bonell, Michael Joachim (2008). The CISG, European Contract Law and the Development of a World Contract Law. The American Journal of Comparative Law, volume 56, 1-28.

Bourque, Jean François (2002). OHADA Four Years On: One Business Law for 16 African Countries. International Trade Forum, volume 4.

Bourque, Jean-François (1998). Doing Business in Sub-Saharan Africa: A Legal Revolution. International Trade Forum, volume 3, 22-23.

Camilla, Baasch Andersen (2007). Defining Uniformity in Law. Revue de droit uniforme (UNIDROIT), volume XI, 5. OHADATA reference number: D-08-04.

Cartron, Aude-Marie and Cousin, Barthélémy. OHADA: a Common Legal System Providing a Reliable Legal and Judicial Environment in Africa for International Investors. OHADATA reference number: D-07-27.

Castellani, Luca G. (2008). Ensuring Harmonisation of Contract Law at Regional and Global Level: the United Nations Convention on Contracts for the International Sale of Goods and the Role of UNCITRAL. Revue de droit Uniforme UNIDROIT, 2008, 115-26. OHADATA reference number: D-09-08.

Claringbould, Maarten H. (2006). The Digital Waybill and the Digital Pen: A Success Story from the Netherlands. Revue de Droit Uniforme, volume 9, 667.

Clarke, Malcolm (2006). National Judges Facing Gaps in the CMR: British Case-Law. Revue de Droit Uniforme, volume 9, 633.

Coetzee, Juana (2006). Harmonization of Sales Law: An International and Regional Perspective. Vindobona Journal of International Commercial Law and Arbitration, volume 10, 15-26.

Cooper, Seward Montgomery (2004). The African Development Bank, the African Law Institute and the Harmonization of Laws in Africa. Law for Development Bulletin 2004, 29. OHADATA reference number: D-05-18.

Cousin, Bartélemy (2005). The Future for OHADA. OHADATA reference number: D-05-64. Available from: 2005/pub11006.aspx?page=1672.

Crothers John D. (2000). Recent Experience in Project Finance and Privatisation in Africa: Developments in the Maghreb and West Africa. Practicing Law Institute, Commercial Law and Practice Course Handbook Series, volume 809, 519-34.

Csoklich, Peter (2006). CMR as National Law and Cabotage in Austria. Revue de Droit Uniforme, volume 9, 685

Date-Bah, Samuel Kofi (2004). The UNIDROIT Principles of International Commercial Contracts and the Harmonisation of the Principles of Commercial Contracts in West and Central Africa: Reflections on the OHADA Project from the Perspective of a Common Lawyer from West Africa. Uniform Law review, volume 9, 269-273. Available from: articles/2004-2-datebah-e.pdf.

Date-Bah, S. K. (2008). The Preliminary Draft OHADA Uniform Act on Contract Law as Seen by a Common Law Lawyer. Revue de droit Uniforme UNIDROIT, 2008, 217-22. OHADATA reference number: D-09-14.

Deschamps, Isabelle (2011). Commercial Law Reform in Africa: A Means of Socio-Economic Development, But for Whom? Perspective of Women Entrepreneurs in Benin (December 15, 2011). Available at SSRN:

Dickerson, Claire Moore (2005). Harmonizing Business Laws in Africa: OHADA Calls the Tune. Columbia Journal of Transnational Law, volume 44, 17-73.

Dickerson, Claire Moore (2007). The Cameroonian Experience Under OHADA: Business Organizations in a Developing Economy. Business & Society Review, volume 112, 2.

Dickerson, Claire Moore (2008). The Introduction of OHADA Law in Anglophone Countries; Linguistic Challenges. Revue de droit des affaires internationales, 2008, 743-750. OHADATA reference number: D-10-22.

Dickerson, Claire Moore (2010). The Future of International Law and Development: Flying under the Radar.North Carolina Journal of International Law & Commercial Regulation, volume 35, 550-70.

Dickerson, Claire Moore (2010). OHADA on the Ground: Harmonizing Business Laws in Three Dimensions.The Tulane European and Civil Law Forum, volume 25, 103-18.

Dickerson, Claire Moore (2011). Informal-Sector Entrepreneurs, Development and Formal Law: A Functional Understanding of Business Law. The American Journal of Comparative Law, volume 59, 179-226.

Djieufack, Roland (2004). The Nature of Agency Relationship Under the OHADA Uniform Act on General Commercial Law and Common Law: A Comparative Study. Post-Graduate (maitrise) dissertation, University of Dschang. Available from:

Douajni, Gaston Kenfack (2008). Practical Perspectives on Recognition and Enforcement in a Modern World. No.1Disputes Resolution International, volume 2, 191-98.

Dudicourt, Emmanuelle (2007). Assessment of the Effectivity of OHADA Reforms – Is OHADA a Relevant Model for ASEAN (Association of Southeast Asian Nations)? OHADATA reference number: D-07-40.

Eisenfeld, Jamie, and Franc¸ois Serres (2001). African Legal Developments in the United States and Sub-Saharan Africa. International Lawyer, volume 35, 869-877.

Ekome, Emmanuel (2002). Public Issue of Shares Under the Companies Ordinance and the Uniform Act of the OHADA Treaty. Juris Périodique, volume 50, 95-108.

Enonchong, Nelson E. (2002). The Harmonization of Business Law in Africa: Is Article 42 of the OHADA Treaty a Problem? Journal of African Law, volume 51:1, 95-116.

Epie, Aloys. Recognition and Enforcement of International Arbitration Awards: A Comparative analysis of the New York Convention, the UNCITRAL Model Law on International Commercial Arbitration and the OHADA Regimes. OHADATA reference number: D-09-38.

Ferrari, Franco (2001). International Sales Law in the Light of the OHBLA Uniform Act Relating To General Commercial Law and the 1980 Vienna Sales Convention. Revue de Droit des Affaires Internationales, volume 5, 599.

Ferrari, Franco (2001). The OHBLA Draft Uniform Act on Contracts for the Carriage of Goods By Road. Revue de Droit des Affaires Internationales, volume 7, 798.

Ffooks, John and Rangira, Adrien (2011). Bankruptcy in Francophone Africa: OHADA’s Uniform Act in Theory and Practice. 2011 WL 190738.

Fontaine, Marcel (2004). The Draft OHADA Uniform Act on Contracts and the UNIDROIT Principles of International Commercial Contracts. Uniform Law Review, volume 9, 573-584. OHADATA reference number: D-05-02. Available from:

Fontaine, Marcel (2004). OHADA Uniform Act of Contract Law Explanatory Notes to the Preliminary Draft. Available from:

Forneris, Xavier (2001). Harmonising Commercial Law in Africa: The OHADA. Juris Périodique, volume 46, 77-85. OHADATA reference number: D-05-21.

Forneris, Xavier (2001). Harmonizing Commercial Law in Africa: The OHADA. Juris Périodique, volume 46, 77-85.

Fortin, Ann and Dicko, Saidatou (2007). The Impact of the New OHADA Accounting System on the Judgments and Decisions of Cameroonian Bankers. Available from:

Garzon, Paula E. et. al. (2000). Cross-Border Insolvency and Structural Reform in a Global Economy. International Lawyer, volume 34, 533-43.