Regis SIMO
Bocconi University, Milan, Italy
African Economic Conference
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Outline
 Introduction
 OHADA as ‘New’ L&D in Africa
 OHADA as an ‘Instrument’ of RI in Africa
 Conclusion
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Introduction
 Doing business in Africa until recently was associated
with high risks – a voyage to the unknown
 One of the identified problems was that of outdated
laws – unsuitable for business
 Hence the need for a law reform to cope with the
challenges of the globalisation of markets (with the
goal of attracting investments)
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OHADA is conceived as
 a tool for the development of the continent
and
 as an instrument of regional integration in Africa
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II. OHADA as ‘New’ L&D in Africa
 A. The situation before OHADA
 B. The rationale for a new law
 C. Testing OHADA against ‘law and finance’ theories –
new ‘law and development’ revisited
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A. The situation before OHADA
 A feeling of lawlessness in the jungle of outdated laws
 Three levels of diversity



Coexistence between ‘informal’ and ‘formal’ laws
Intra-African diversity
Between African legal systems and ‘colonial’ laws
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B. The rationale for a new law
 The idea behind the creation of OHADA sprang from
the political will to strengthen the African legal system
by enacting a secure legal framework for business in
Africa – viewed as indispensable for the development
of the continent
 The objective is to harmonise business laws in the
Contracting States by the elaboration and adoption of
simple modern common rules and to promote
arbitration as a means of settling contractual disputes
[Art. 1 of OHADA Treaty]
 17 members (as of today)
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C. OHADA and ‘Law & Finance’
 OHADA uniform legislations are civil law-based
(modelled on French law) – criticised as non prodevelopment by ‘law and finance’ theories
 The overall ‘legal origin’ theory tends to show that
countries based on (French) civil law perform less(er)
in the business arena in terms of investments
attractiveness and domestic businesses development
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III. OHADA as an ‘Instrument’ of RI
in Africa
The OHADA also aims at using harmonisation of
business law as an instrument to reinforce legal and
economic integration
As a fully-fledged international organisation, OHADA
pursues its goal of a common law among Contracting
Parties through
 the establishment of institutions with particular
functions, and
 an innovative law-making process
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A. Institutions
Article 3 of OHADA Treaty establishes five institutions
 Council of Ministers is the highest decision-making body of the
Organisation – the legislative and regulatory organ of OHADA
 Common Court of Justice and Arbitration (‘CCJA’) - is the
judicial body of OHADA (and it’s also an arbitration centre)
 Permanent Secretariat is a permanent body of (headed by a
Permanent Secretary and independent from Members States,
this organ discharges administrative duties
 Higher Regional Training School for Legal Officers is in charge of
training judges and other legal officers on OHADA law and is
also entrusted with the mission of research in business law
 Conference of Heads of States and of Governments is the new
institution created by Article 3 of the Revised OHADA Treaty. It
is a political forum presided over by the Head of State or of
Government whose State is also chairing the Council of
Ministers
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B. OHADA and African Economic
Integration
 In this increasing globalising world, regional economic
integration appears as preparatory steps – or building
blocks in trade parlance – towards multilateral
liberalisation
 the recent boom of regional trade blocs in many parts of
the globe, and in Africa in particular, can be assimilated
with the desire of nation-states involved to secure a fair
share of international exchanges’ benefits
 OHADA poses as a stepping stone toward such regional
integration(s) in Africa in that a successful “unification” of
Members’ laws would eventually reduce obstacles to intraAfrica trade
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C. OHADA Law making process
OHADA harmonises business laws in the Contracting
States
 by the elaboration and adoption of modern common
rules adapted to their economies,
 by setting up appropriate judicial procedures, and
 by encouraging arbitration for the settlement of
contractual disputes
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 The term ‘harmonisation’ itself is a misnomer since beyond
the exercise tending to harmonise the result is that of
‘unification’ of substantive laws and procedures
 UAs enter into force ninety (90) days after their adoption
unless a particular UA provides otherwise
 Pursuant to Article 10 of OHADA Treaty, UAs are of a
supranational character – once adopted they become
directly applicable in the territory of Contracting Parties
and override all national laws on the subject matter,
present and subsequent (but only to the extent of the
inconsistent with the UAs concerned)
 Judicial uniform interpretation of the Treaty, UAs and
other Regulations is ensured by the CCJA
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IV. Conclusion
 OHADA was created with the idea that it will serve as a
development engine on the African continent which was
lagging behind in terms of investment opportunities due to
outdated legislation
 In order to build confidence and trust in can be praised to
have achieved in a rather short period of time to set up
functioning institutions and produce uniform laws on a
range of areas of business laws in furtherance of its goals,
thereby strengthening investors’ confidence in the region
 Open to all African Union’s Members, it can be hoped that
it will really serve the purpose of RI on the continent when
it attracts adherence of other non-civil law countries
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 A well-designed and well-conducted integration in Africa
would help the continent withstand challenges of
international competition where the countries involved
adopt a concerted strategy and speak with a unique voice in
international (economic) fora
 Obstacles of OHADA’s role as facilitator of economic
integration remain present in
(a) the conflict of competences in areas not ‘supposed’ to be
covered by OHADA law itself because of its narrowly defined
agenda around a somewhat ‘traditional’ business law
(b) the resistance by other African countries who are afraid of a
sort of “contamination” of their laws by “civil law”
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Contact: regis.simo@phd.unibocconi.it
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