OHADA
A Regional Legal System to Support Economic Integration in Africa
INTRODUCTION
Regional integration initiatives in Africa have a long history, dating back to the
establishment of the South African Customs Union (SACU) in 1910 and the East African
Community (EAC) in 1919. Since then a number of regional economic communities have
been formed across the continent, particularly since the 1970s.1 Throughout the years, the
number of regional economic communities has increased and has culminated to about ten or
so regional economic groupings, every country in Africa being member of at least one
regional economic group. These multiple initiatives and efforts towards more integration are
the evidence that economic integration occupies a critical place in the agenda of the majority
of countries on the continent. This can be reflected by the extrapolation of these initiatives to
the continental level with the attempts to create economic cooperation among all African
countries.
The attempts to create economic integration on the continental level have culminated
in the signing of the Treaty of Abuja in 1991, which established the African Economic
Community (AEC). The Treaty, which came into force in 1994, provides for the
establishment of a continent-wide economic cooperation through the strengthening of eight
existing regional economic communities across the continent. These regional economic
communities, which are the pillars of the AEC recognised by the African Union, have been
given the mandate to progress gradually, ultimately with the view of merging and form the
AEC. However, successive attempts towards this goal have been largely ineffective and
unsuccessful.2
1
Geda A., Kibret H. (2001), ‘Regional Economic Integration in Africa: A Review of Problems and Prospects with
a Case Study of COMESA’, Regional Economic Integration in Africa, p. 2.
2
Oppong R.F. (2011), Legal Aspects of Economic Integration in Africa, Cambridge University Press, p.1.
Nowadays, the need for African states to integrate their economies to enhance their
growth and development is widely accepted. However, how it should be pursued remains
contested and well debated. This paper is an attempt to answer this question and highlights
the role law can play in supporting economic integration in Africa. The paper focuses on the
Organisation for Harmonisation of Business Law in Africa, which is the largest legal
integration initiative on the continent, and studies how the legal system established by
OHADA can be used to support the establishment of the AEC. Comparative law theories are
used to analyse the organisation and understand it within its context, in order to identify the
most efficient way the OHADA efforts could be used to support the establishment of the
AEC.
Introducing OHADA
The Organisation for Harmonisation of Business Law in Africa (OHADA) was
created by the signing of the Port-Louis Treaty on 17 October 1993. Current member states
include Benin, Burkina-Faso, Cameroon, Central African Republic, Chad, Comoros, Congo,
D.R. Congo, Cote d’Ivoire, Gabon, Guinea, Guinea-Bissau, Equatorial Guinea, Mali, Niger,
Senegal and Togo. According to article 1 of the Treaty, the aim of the organisation is to
harmonise the business law of its Member States by issuing uniform laws which are directly
applicable in every member state. These unified laws, inspired from western laws, are meant
to be simple and modern. A regional court – the Common Court of Justice and Arbitration
(CCJA) – has been established to ensure a uniform application of these unified laws. The
application of these Uniform Acts through a special judicial system is meant to help establish
a secure and reliable framework in order to attract more investment in the member states.
This paper provides an analysis of the OHADA framework as a regional legal system,
which is aimed at producing transnational rules applicable in every OHADA member
state. Legal history is used to analyse the creation and development of commercial law in the
region. Here the paper engages in the discussion on legal diffusion and studies the use of
legal transplants in the OHADA law making process. OHADA is analysed as a perfect
example of legal diffusion, which uses legal borrowing to improve the legal systems that its
member states inherited from colonisation.
The paper also focuses on the OHADA judicial system, with a particular emphasis on
the interaction between the CCJA and the member states’ national courts. The
analysis focuses on the vital role of the CCJA and identifies the various challenges faced by
the OHADA framework in existing alongside its Member States' legal systems and bringing
them together under the regional jurisdiction of the CCJA. A particular focus is put on the
different issues that arise throughout the process in order to situate them in the relevant legal
theory. The concepts of harmonisation, legal systems, legal transplants and legal culture are
used to analyse both the process carried out by OHADA and the rules that result from this
process.
The establishment of a legal and regulatory environment where private transnational
exchanges can safely take place has become essential for developing countries to attract
further investment, as well as to promote the development of the local private sector.3
Particularly in Africa, there is a need for reforms to support further economic development.
These reforms are meant to support economic growth by facilitating transnational business
transactions.4
The Organisation for Harmonisation of Business Law in Africa (OHADA), which is
the focus of this paper, was created with the objective of harmonising business law in order to
facilitate business transactions in its different Member States. As stated in the preamble of the
OHADA Treaty, the founding members of the organisation were motivated by the desire to
establish a secure and reliable legal framework by creating common rules meant to be simple
and modern. This legal framework is meant to attract more investment and thereby incite
development in the region. To achieve its goal, OHADA issues unified law laws called
Uniform Acts, which are directly applicable in every Member State and supersede any
previous national legislation on the same topic.
Literature on OHADA claims that most of the Uniform Acts were strongly inspired
from French business law, with an overall legal framework based on the Civil law tradition.5
The majority of founding members of the organisation were former French colonies, which
inherited their legal systems from France. Guinea-Bissau and Equatorial-Guinea, the two
Member States which joined OHADA later on, inherited their legal systems from Portugal
and Spain, which are also considered to belong to the Civil law tradition. These observations,
3
S. Mancuso, ‘Trends on the Harmonization of Contract Law in Africa’ (2007) 13 Annual Survey of
International and Comparative Law, Issue 1, 157.
4
Ibid, 158.
5
B. Martor, N. Pilkington, D. S. Sellers, and S. Thouvenot, Business Law in Africa, OHADA and the
Harmonization process (2007), 3.
and the fact that OHADA is supposed to “harmonise” the business law of its Member States,
supposes that the laws that are created as a result of the harmonisation process are strongly
rooted in Civil law.
Another goal of the organisation is to expand beyond its original members and to
reach out to other countries in Africa that do not necessarily operate legal systems based on
Civil law tradition.6 This aspiration of the founders of the organisation was cast in article 53
of the Treaty, which provides that the Treaty is open to all Member States of the African
Union. Building up on this expansion goal of the organisation, legal scholarship on OHADA
has recently made some timid efforts to cover the subject of harmonisation between the
Common law and Civil law. There is a general tendency to encourage Common law countries
bordering the OHADA area to join the organisation in order to benefit from its original
structure.7Some authors have even suggested that reconciling the Common law and Civil law
within OHADA should rather be easy, as “business is business; commerce is commerce.
Whatever language the parties use, whatever legal system, the goal is commercial success,
and the role of law is to create a backdrop of predictability”.8 However, as it will be
highlighted in this paper, the path OHADA has taken in its harmonisation process might not
be appropriate to gather together African countries belonging to different legal traditions.
Introducing OHADA as a legal system
As stated in the OHADA Treaty, OHADA was created in order to provide its Member
States with a legal framework meant to be secure and reliable, capable to attract more
investment and incite economic development. The different theories that are analysed in this
chapter are meant to help understand the specific context in which OHADA was created and
6
Ibid, p.3.
For example in J.A. Penda, ‘The History of Harmonisation of Laws in Africa’, in C.M. Dickerson (ed.), Unified
Business Laws for Africa, Common Law Perspectives on OHADA, (2009), the author is suggesting that the
Common Law countries of the region join OHADA. The author’s main argument is based on the example of the
application of OHADA laws in the English speaking provinces of Cameroon, which supposedly belong to the
Common law tradition. The author argues that this example should be enough to persuade Common law
countries that OHADA laws can easily be applied in a Common law context. In A. Akinbote, ‘The OHADA and
ECOWAS Treaties as Tools for Regional Integration and Regulatory Norms’ (2010) Network of Reformers’
Workshop, Kampala 19-21 January 2010, the author also suggests that the Common law countries in West
Africa join OHADA. However, he is arguing that the OHADA framework should be used as a tool to further the
economic integration process conducted by the Economic Community of West African States (ECOWAS).
7
8
C.M. Dickerson (ed.), Unified Business Laws for Africa, Common Law Perspectives on OHADA, (2009), 106.
further developed. These theories are also used to identify any special features provides by
OHADA, which makes it different from other legal harmonisation models in the world.
The abundant literature on OHADA presents it as an international organisation
created by a treaty (the OHADA Treaty).9Most authors have commented on the originality of
OHADA as an international organisation aimed at harmonising commercial law, provided
with special institutions established to reach this goal. Contrary to other organisations which
are normally monitored by a body composed of Head of States and Governments, the Council
of Ministers is the most important institution which prepares the OHADA laws with the
support of the Permanent Secretariat. This procedure is meant to provide a smoother lawmaking mechanism. Authors also highlight the key role of the CCJA as the highest court and
ERSUMA as a regional training centre in ensuring a uniform application of the OHADA
laws.10
In an interesting article published in 2005, Professor Claire Moore Dickerson pushes
the discussion further and, for the first time, clearly describes OHADA as “a unified legal
system designed to protect and enhance the pro-investment qualities of the OHADA laws”. 11
In another contribution, Professor Dickerson argues that OHADA provides sophisticated
laws, which are implemented by a supranational system designed to promote predictability
and transparency, and meant to be uniform across all the Member States. She argues that
OHADA provides much more than laws, because it has also established fundamental legal
institutions. 12
Three characteristics are analysed to verify that OHADA is a legal system:
-
9
The OHADA Council of Ministers promulgates new laws and modifies old ones.
Martor, above n 4, p.1.
10
Issa-Sayegh (2008), p.26. This is the reference book on OHADA, sometimes referred to as the OHADA Green
Code. Under the supervision of Professor Joseph Issa-Sayegh, who has written extensively on OHADA, the
authors review, analyse and comment each OHADA instrument - the Treaty, the Uniform Acts and the
subsequent regulations. Each comment includes an extensive bibliography based on different works on
OHADA, as well as case law from the CCJA and national courts within the OHADA territory.
11
Dickerson, C.M (2009), p. ix.
12
Ibid
-
The CCJA interprets OHADA laws in order to preserve those laws' uniformity across
the entire OHADA region.
-
The regional school serves to reinforce and enhance all these efforts by providing
continuing legal education in the region.13
Discussing the Uniform Acts, authors highlight the share of competence between the
organisation and Member States in the subjects covered by the uniform laws: national laws
which are not contrary to uniform laws remain in force and are still applicable and used as
sources of law.14 The Uniform Acts provide an overall legal framework which is in general
based on civil law and has to a certain extent borrowed from modern French business law.15
Because the majority of the OHADA Member States are former French colonies, there is a
general assumption that the French legal system has inspired most of the OHADA legislation.
16
In discussing the OHADA law-making process, most authors focus on the
involvement of three key institutions in the law-making process: the Permanent Secretariat
produces the draft of the new text which is discussed and adopted by the Council of Ministers
after analysis and favourable opinion by the CCJA (article 6). The involvement of the
Member States governments is also highlighted, as the final draft submitted to the Council of
Ministers by the Permanent Secretariat includes comments and modifications submitted by
each member state.17
The OHADA law-making process has been criticised by some authors who have
highlighted the insufficient national participation in the process. Their argument is that a total
disregard of national parliamentary involvement in the drafting process will eventually create
further political problems and raise several issues which might affect the good functioning of
the organisation.18The literature also discusses the establishment of national commissions by
13
Dickerson (2005), 'Harmonizing Business Law in Africa: OHADA Calls the Tune', Columbia Journal of
Transnational Law 17p.72.
14
Issa-Sayegh (2008), p.28.
15
Martor (2007), p.2.
16
Dickerson, (2005), p.20.
17
Issa-Sayegh (2008), p.29.
18
El Saadani, S. (2008), 'Communication: OHADA, a Continent-wide Perspective', Uniform Law Review, p.485.
the Permanent Secretariat as a pragmatic unofficial channel to solve this issue by increasing
national participation.19
Commenting on the OHADA judicial system, authors highlight the fact that national
courts have jurisdiction over OHADA related matters in first and second instance. These
courts have therefore a critical role to play in the application of the OHADA laws. The hybrid
nature of the OHADA judicial system is also highlighted, as it is composed of Member
States’ national courts headed by the CCJA, which is a supranational court. Authors point out
the issue raised by this kind of system, which could become an impediment to the uniform
application of OHADA laws if national courts keep applying national laws abrogated by the
OHADA uniform acts.20
Therefore, the literature focuses on the vital role of the CCJA in the uniform
application of OHADA laws.
21
The literature also points out some issues related to the
location of the court and the fact that Member States' national courts are at times reluctant to
accept OHADA's supranational decisions. This situation has somehow been inhibiting the
CCJA power.
Some authors have proposed the creation of national benches handling
OHADA law disputes to help solve the conflict on jurisdiction between the CCJA and
national courts which impedes the efficiency of the dispute settlement mechanism. 22
The process conducted by OHADA is deemed to offer several advantages.
OHADA member states wanted a Western/Northern system, not a customary or
traditional one. They believed that foreign investors would be more comfortable with an
essentially familiar system; in all likelihood, it would substantially reduce transaction costs. 23
Because OHADA laws are uniform, because their Northern form seems familiar both to
foreigners and to the regional bar and bench, and because they are meant to be clear and
19
Dickerson (2005), p.61.
20
Issa-Sayegh (2008), p.36.
Yado Toe, J. (2008), ‘La problematique actuelle de l’harmonisation du droit des affaires par l’OHADA’,
Uniform Law Review, p.24.
21
22
El Saadani (2008), p.487
23
Dickerson (2005), p.59.
accessible, they are deemed to reduce transaction costs into the region and among the states
within the OHADA territory. Moreover, it is assumed that because legal professionals in the
region respect the quality and integrity of the decisions of OHADA's supranational court,
transaction costs may fall even further.24 However, the literature does not provide any
empirical evidence on the impact of OHADA legislation on transaction costs. Focusing too
much on foreign investors and local legal community might produce negative results and turn
out to be an impediment to domestic investment and local business.
The literature also argues that harmonisation promotes economic integration. As legal
integration cannot be achieved through Regional Economic Communities, OHADA can be
used as a locomotive for economic integration in Africa, and thereby support the
establishment of the AEC. Harmonisation is thereby deemed to “allow the African continent
to enter into the channels of international trade, strengthen African unity, facilitate crossborder trade and encourage the relocation of large companies in Africa”.25However, these
several benefits of harmonisation are listed without any empirical data evidencing them.
Considering the expansion of OHADA to the entire continent, authors have argued
that OHADA can strengthen the credibility of Africa, improve the flow of investment,
accelerate development and influence of the globalisation of business law in its entirety. 26
OHADA is also depicted as providing individual countries with the opportunity to attract
more foreign multinational corporations. By creating an environment which is commercially
viable, with a single form of business laws which are uniformly applied, OHADA would
enable individual states to require that foreign-based multinational corporations comply with
local law if they are to invest anywhere within the OHADA territory.27
Some issues arise in the process carried out by OHADA.
OHADA has been criticised as being a form of colonialism because it bears the
influence of a Northern legal system. In her 2005 contribution, Professor Dickerson rebutted
this criticism, arguing that the affirmative commitment to OHADA is rather based on the
24
Ibid, p.24.
Mouloul, A. (2009), ‘Understanding the Organization for the Harmonization of Business Laws in Africa
(O.H.A.D.A.)’, 2nd edition, Port-Louis, , pp.9 and 12.
25
26
Ibid, p.13.
27
Dickerson (2005), p.71.
admiration of the OHADA structure for the elegance and simplicity of the OHADA laws by
legal professionals within the OHADA territory. Her conclusions are based on interviews she
conducted in three OHADA Member States.
28
However, the author did not question the
deeper reasons which could explain the admiration for the OHADA structure, such as the
legal culture in the region.
Sovereignty is yet another issue discussed by the literature on OHADA. Sovereignty
is an issue in two aspects: the simple adoption of uniform laws is a relinquishment of
sovereignty contemplated by the OHADA Treaty: a law that OHADA adopts is automatically
and immediately an internal law of each OHADA's member state.
29
The CCJA as well
represents a transfer of indicia of national sovereignty to a supranational authority. 30As a
result, courts are sometimes protective of their own authority. National courts are in fact not
sending all their business-related cases to the CCJA and parties apparently often do not insist
that their case be removed – because of the location (Abidjan) and the related cost.31
The OHADA Member States have recently evidenced a keen interest in welcoming
Anglophone African countries and their common-law heritage in the organisation. OHADA
institutions are also making more efforts to include concepts from other legal systems when
drafting new laws, rather than to follow chiefly the French pattern.32 This is evidenced in the
drafting process of a new Uniform Act on Contract Law, through which OHADA is deemed
to reach out to its neighbouring countries from the Common Law tradition. However, other
authors argue that OHADA should not expand, as the organisation would become a heavy
and costly structure, making the law-making process and negotiation of new uniform acts
rather impossible. The establishment of the OHADA framework in its current Member States
was easy because of their shared legal tradition and might be impossible with countries from
other traditions, with different legal cultures and legal concepts. Therefore, some authors
have suggested that the efficiency of the OHADA laws and structure should be considered
28
Ibid, p.23.
29
Ibid, p.55.
30
Ibid, p.56.
31
Ibid, p.57.
32
Ibid, p.22.
before espousing continuing support for those laws in their West and Central African context
and before encouraging their extension to Anglophone neighbours.33
This paper is yet another analysis of the OHADA framework and the issues raised by
its process. However, it distinguishes itself by focusing on OHADA as a transnational legal
system used to promote economic integration in Central Africa. This approach, which is
centred on comparative law theories, provides a full and clear understanding of OHADA in
its context. Comparative law can be defined as an investigation of legal rules and procedures
not of one system in isolation but in harness with the examination of the equivalent rules and
procedures in at least one other system.34It is an academic discipline that studies the
relationship between legal systems or between legal rules and procedures of at least two legal
systems.
35
Furthermore, comparative law is known as the study of the relationship of one
legal system and its rules with another.36 Comparative law methodology is used in order to
understand the nature of any such relationship, the reasons for the similarities and the
differences.37
Comparative law theories are used in this paper in order to understand the regional
legal system developed by OHADA, its interaction with its Member States’ legal systems and
the different factors which influence the shape of the OHADA framework. It provides with a
better and clear understanding of the OHADA framework, focusing on the law in context,
law as a culture, beyond black letter law.38Understanding the OHADA framework in its
historical context in particular will be necessary to identify the different conditions which
favoured the establishment and development of OHADA as well as its limitations.
This study will particularly analyse the methods of thought and procedures used
within OHADA. This involves the methods of handling legal materials, the legal procedure
33
Ibid, p.31.
34
Watson, A. (1993), Legal Transplants: An Approach to Comparative Law, 2nd edition, London, The
University of Georgia Press, p.2.
35
Ibid, p.9.
36
Ibid, p.6.
37
Carozza, Glendon and Picker (2007), Comparative Legal Traditions, Text, Materials and Cases on Western
Law, St Paul, Thomson West p.6.
38
Orucu, E. (2007), ‘Developing Comparative Law’, in Nelken, D. and Orucu, E. (eds.), Comparative Law, A
Handbook, Oxford, Hart Publishing, p.45.
implemented through the OHADA structure and the role of those engaged in the legal and
judicial processes. Here the focus will be on the different techniques used in the OHADA
legislative process, the style and method of drafting the OHADA laws, the methods of
interpretation used to ensure a uniform application of OHADA legislation. Furthermore, it
will be necessary to analyse and discuss the authority of precedents, the contribution made by
academics to the development of law, and the specific style of judicial opinion within the
OHADA territory.
Several comparative law theories can be used in order to achieve these goals:
A. Harmonisation and unification
Harmonisation and unification theories are useful in order to analyse the process that
is carried out by OHADA. It is also necessary in order to identify the reasons for
harmonisation, its objective and the means used through the process.
Article 1 of the OHADA Treaty provides that the goal of the organisation is to
harmonise business law within its Member States by elaborating common rules meant to be
simple, modern and adapted to the Member States’ economies. Harmonisation is defined as
the coordination of different legal systems in order to reduce their differences and reach
common goals.39 With harmonisation, nations agree on a set of objectives and targets and let
each nation amend their internal law to fulfil the chosen objectives, giving their laws some
sort of similarity. In harmonisation, the focus is placed on making the laws of different
countries similar. 40
However, by adopting common rules which are meant to be the same in every
Member State, what OHADA is doing is unification rather than harmonisation. Unification
can be defined as a process in which nations agree to replace national rules and adopt a
unified set of rules chosen at the interstate level.41It is a process which is aimed at reducing
the discrepancies between the national legal systems by inducing them to adopt common
39
Issa-Sayegh, J. and Lohoues-Obles, J. (2002), OHADA, Harmonisation du droit des affaires, Coll.Droit
uniforme Africain, UNIDA, JURISCOPE, Bruylant, p.44.
40
Andersen, C.B. (2007), ‘Defining Uniformity in Law’, Uniform Law Review 1, p.15.
Carbonara, E. and Parisi, F. (2007), ‘The Paradox of Legal Harmonization’, Public Choice, Vol.132, No.3/4,
p.368.
41
principles of law. The method used is to draw up a uniform law on the basis of work by
experts in comparative law and to incorporate it in a multi-partite treaty which obliges the
signatories, as a matter of international law, to adopt and apply the uniform law as their
municipal law.42 Through unification of laws, the OHADA Member States have elected to
share a set of rules, the defining element here being the voluntary sharing of laws.43
The creation or mutual recognition of common legal principles is achieved through a
foundational instrument, the OHADA Treaty. Through this instrument the Member States
have agreed to delegate their power to supranational organs and institutions aimed at
producing those unified laws. Through these cooperative instruments, systems increase to a
greater or lesser extent the degree of similarity between their legal systems. 44 The ultimate
goal sought by OHADA in establishing these unified laws is to encourage trade and industry
and promote economic development.45
In conducting unification within its territory, OHADA’s objective is the substitution
of better rules in each Member State’s legal system. The adopted uniform laws provide the
Member States with deficient legal regimes with ready-to-adopt instruments meant to be
simple and modern compared to their own national laws.
46
The Member States therefore
have an opportunity to get rid of their colonial laws in favour of modern laws, which improve
on the status quo with respect to some normative social goals, such as economic
development. Through this process, the goals of unification blend with law reform.47
OHADA was also created to address legal risk, which is caused by the concept of
unpredictable rules applying to a business relationship. OHADA provides parties with a legal
system that allows them to form clear legal commitments with predictable consequences. A
unified legal system avoids the conflict of laws problems and the often difficult application of
private international law and foreign substantive law. This reduces legal uncertainty
42
Zweigert and Kötz (1998), An introduction to comparative law, 3rd edition, Oxford, Clarendon Press.p.24
43
Andersen (2007), p.18.
44
Carbonara and Parisi (2007), p.378.
45
Andersen (2007), pp.19-20.
46
47
Gopalan, S. (2003), 'Transitional Commercial Law: The Way Forward', Am. U. Int’l L. Rev. 18, No.4.p.805.
Stephan, P.B. (1999), ‘The Futility of Unification and Harmonization in International Commercial Law’,
University of Virginia School of Law Legal Studies Working Papers, Working Paper No. 99-10, p.5.
associated with international business, and generates greater legal predictability and
security.48
OHADA has opted for international legislation as an instrument to achieve unification
within its territory. International legislation indicates normative regulations devised
internationally and then introduced into national law by national legislation or a mere
ratification act.49 OHADA Member States bound by an international convention – the
OHADA Treaty – use the Uniform Acts with the intent to provide obligatory rules of regional
application and aimed at achieving uniformity within the OHADA territory.50 By encouraging
the use of arbitration as an option for dispute settlement, OHADA has also opted for the use
of un-codified rules to support is unification process.
Unification endeavours raise several issues, which are going to be analysed in this thesis.
The substitution of a uniform set of rules for the variety of rules provided by different
national legal systems is said to increase legal predictability and reduce transaction costs. To
the extent that domestic laws are dispositive there is little empirical evidence that they
constitute a significant impediment to cross-border business and quite a strong view from
industry that they do not. The business community is much more concerned with the
consistency of decision-making and with enforceability. The impact of differences in
dispositive rules can easily be eliminated by contractual provisions which lay down a
common set of rights and duties in all relevant jurisdictions.51
Much of the efforts directed at unifying these laws are unnecessary as the rules that
are produced might hinder rather than promote international business.52 The greater clarity
which is found in the OHADA Uniform Acts is meant to provide more precise instructions
covering a greater number of eventualities. As the rules provided become more exact and all-
48
Carbonara and Parisi (2007), p.369.
49
Mistelis, L. (2000), ‘Is Harmonisation a Necessary Evil? The Future of Harmonisation and New Sources of
International Sales Law’, in Fletcher, F., Mistelis, L. and Cremona, M., Foundations and Perspectives of
International Trade Law, Sweet and Maxwell, p.9.
50
Gopalan, S. (2003), p.814.
51
Goode, R. (2005), 'Rule, Practice, and Pragmatism in Transnational Commercial Law', The International and
Comparative Law Quarterly, Vol.54, No.3, p.555.
52
Stephan,P.B. (1999), p.2.
encompassing, the odds increase that they will lead to outcomes that parties to a transaction
might want to avoid. Forcing business people to tailor their own transactional relationships at
some point may become counterproductive, as in commercial law flexibility is sometimes
preferred to too much certainty.53
‘Any uniformity that is achieved is born with an inherent hollowness caused by the
realisation that national courts or administrative authorities will interpret the instrument in the
backdrop of their own legal systems with the resultant divergences of interpretation’.54 This
might cause the law in action to be very different from the law in the books. However, article
14 of the OHADA Treaty provides the establishment of the Common Court of Justice and
Arbitration (CCJA) which was created to address this very issue and ensure a uniform
application of OHADA legislation in every Member State. A critical analysis of case law as
well as an empirical research at the CCJA in Abidjan will be conducted to analyse the
methods and techniques used by the court in order achieve this goal and to assess the uniform
application of OHADA legislation.
Countries are attached to their legal traditions, which are perceived to reflect the
norms and accepted usages of their citizens, guaranteeing a stable environment where
economic agents could produce and trade with other local partners.55 Legal differences often
stem from different cultures and social preferences. Convergence between different legal
cultures is rather impossible, on account of the fact that the differences arising between these
cultures at the epistemological level are irreducible.56 Specific rules are often suited to local
traditions and customs, and even if their harmonisation may enhance foreign trade
opportunities, it may impose quite substantial short-run adaptation costs.57 This theory can be
verified in recent attempts by OHADA to reach out to nations from the common law
tradition, which raises yet more issues related to unification. Diversity might be of itself is a
great virtue.
53
54
58
Diversity affords the opportunity to choose the best amongst a host of
Ibid, p.4.
Gopalan, S. (2003), p.806.
55
Carbonara and Parisi (2007), p.369.
56
Legrand, P. (1996), 'European Legal Systems are not converging', International and Comparative Law
Quarterly, Vol. 45. p.62.
57
Carbonara and Parisi (2007), p.370.
58
Gopalan, S. (2003), p.806.
competing legal regimes, and the market determines the best law.59 Removing diversity
prevents a healthy choice of laws and undermining legal cultures.60
Drawing from a regional pool of legal talent might increase the quantity and quality of
expertise available to address legal problems within the OHADA territory, and better
expertise might lead to better rules. However, purely domestic law reform projects also can
draw on a wide range of legal talent and employ comparative analysis to determine optimal
rules at a significant lower cost.61 The negotiations and drafting of international conventions
are normally a lengthy and costly process which could be avoided at a domestic level. Among
the direct costs of legal change, there are the costs of drafting new Uniform Acts and the cost
of adapting pre-existing legal rules and institutions in each adhering Member State.
Unavoidably, the enactment of a new law brings about information and learning costs for
judges, lawyers and legal academics.62 Legal traditions, in the case of the Common Law and
the Civil Law, may also be so distant from each other that society would simply resist the
proposed change.63
The project of unifying substantive international commercial law necessarily depends
on a technocratic legal process. International unification instruments display a strong
tendency either to compromise legal certainty or to advance the agendas of interest groups.
These interest groups may be sufficiently influential to bend national laws toward their own
ends by rewarding states who enact attractive laws. 64 In either case they offer no obvious
welfare gains as compared to rules produced through the national legislative process.65
59
Ibid, p.808.
60
Andersen (2007), p.27.
61
Stephan, P.B. (1999), p.5.
62
Ibid, p.370.
63
Legrand, P. (1997), ‘The Impossibility of Legal Transplants’, Maastricht Journal of European and
Comparative Law, cited by Carbonara, E. and Parisi, F. (2007), p.370.
64
Stephan, P.B. (1999), p.39.
65
Ibid, p.33.
B.
Legal systems
The focus of this paper is OHADA as a transnational legal system with its own laws
and structure. This legal system is aimed at producing transnational rules applicable in every
OHADA Member State.
A legal system can be defined as an operating set of legal
institutions, procedures, and rules.66 It refers to the nature and content of the law generally,
and the structure and methods whereby it is legislated, adjudicated upon and administered,
within a given jurisdiction. Every body of laws, together with its supporting institutions,
whether national or part of a federal or pluralistic system, can be called a legal system. 67 A
legal system may even govern a specific group of persons.68
Three aspects can be used to determine whether OHADA is a legal system: structural,
substantive and cultural.
Structural: here the focus is on the institutions themselves, the forms they take, the
processes that they perform. This includes the number and type of courts, the presence or
absence of constitution, the modes of procedure in various institutions, the division of powers
between judges, legislators, etc. This first requirement is met in OHADA, given that the
organisation is based upon a foundational text – the OHADA Treaty – which provides a set of
legislative and judicial institutions aimed at producing and applying the Uniform Acts. Each
institution has its own procedure and internal structure, similar to institutions in a genuine
legal system.
The substantive aspect covers the laws themselves, which are the output of the legal
system. These laws are found in the doctrine, the statutes and decrees, to the extent that they
are actually used by the rulers. The OHADA Treaty, Uniform Acts and subsequent
regulations and case law are the substantive laws of the organisation.
The cultural aspect covers values and attitudes which bind the system together, and
determine the place of the legal system within the society. These cultural considerations
66
Merryman, J.H. (1985), The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe
and Latin America, 2 Ed., Stanford University Press, Stanford, California, p.1.
67
Friedman, L. (1969), ‘Legal Culture and Social Development’, Law and Society Review, Vol.4, No.1, p.31.
Tetley, W. (1999), ‘Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified),
Unif.L.Rev.(N.S.), p.4.
68
influence the legal system as a whole, as it determines the way people interact with law on a
given society. 69
The OHADA original framework, composed of the Council of Ministers as a
legislative organ and the CCJA as a judicial organ, has developed special values and attitudes
which are shared within the OHADA territory and bind the whole system together.
Furthermore, ERSUMA was established to ensure that these values and attitudes are shared
and spread out within the entire OHADA territory.
The OHADA system is complete, i.e. able to provide an answer to any legal issue
which may arise between the parties within its territory, even if in order to do so one has to
resort to general principles or other areas of law which exist in Member States’ legal systems
A crucial difference between a legal system and mere ‘rules of law’ lies in the fact that the
former presents a degree of structure which is absent from the latter. The OHADA structure
is critical to understanding the logic and values of the system as a whole, and to interpreting
any given rule in the system.70
As a legal system, OHADA produces transnational rules which apply within its
territory. Transnational law is conceived as law which is not particular to or the product of
any one legal system. In the view of its more expansive exponents, transnational law is a
collection of rules which are entirely anational and have their force by virtue of international
usage and its observance by the merchant community.71 Thus transnational law refers to the
extension of jurisdiction across nation states boundaries and all law which regulates actions
or events that transcend national frontiers.72
Transnational commercial law, at least in the modern context, is also defined as the
product of harmonization endeavours. It is a deliberate concoction with its most forms being
69
Ibid, p.34.
70
Gaillard, E. (2001), ‘Transnational Law: A Legal System or a Method of Decision Making?’, Arbitration
International, Vol.17, No.1, p.66.
71
Goode, (1997), p.2.
72
Cotterrell, R. (2012), 'What is transnational law?', Queen Mary University of London School of Law, Legal
Studies Research Paper No.103/2012., p.2. See also Tietje, C., Brouder, A. and Nowrot, K. (eds.) (2006),
Philip C. Jessup’s Transnational Law Revisited – On the Occasion of the 50th Anniversary of its Publication,
Halle-Wittenberg, pp.45-55.
international conventions.73 Transnational commercial law is born as law that is neither
particular to nor the product of any one legal system. It represents the union of rules taken
from many legal systems.74 Admittedly, because they are derived from various national legal
systems, transnational rules stand better chance not to reflect the outdated rules which may
still be found in certain national legal systems. In that sense, the rules produced by OHADA
may help to meet the concerns of modern business.75
Often transnational law refers to regulations originating outside the territorial
jurisdiction of the nation state in which they are situated, or interpreted or validated by
authorities external to it.76 Through its process, OHADA produces rules that are not particular
to any of its Member States’ legal systems but nevertheless apply across their boundaries.
These rules are produced by the Council of Minister, which is external to Member States’
jurisdictions. The transnational law produced by OHADA is primarily made up of rules
applying directly across national borders, rather than a coordination of substantive rules that
may differ among its Member States?77
C. Legal transplants
The history of law includes a history of legal borrowing or legal transplantation.
OHADA is not an exception to this rule. Understanding this aspect of OHADA legislation
and engaging with the literature on legal transplants is necessary to understand the issue of
implementing Western-inspired laws in the context of OHADA.
Three elements make OHADA a perfect example of legal transplantation:
- All of the OHADA Member States inherited their legal systems from European countries
through colonisation.
- OHADA Uniform Acts are made of legal institutions borrowed from different legal
systems.
73
Gopalan, (2003), p.811.
74
Ibid, p.809.
75
Gaillard (2001), p.61.
76
Cotterrell, R. (2012), p.2
77
Ibid.
- By spreading transnational rules through the Uniform Acts, OHADA is also conducting
legal transplantation in each of its Member States.
Legal transplantation refers to the changing of a legal system due to influences from
outside its geographic borders. 78 It can also be described as the moving of a rule or a system
of law from one country to another or from one people to another.79 The study of
transplantation of law has proceeded under many labels including reception, transplants,
spread, expansion, transfer, exports and imports, imposition, circulation, transmigration,
transposition and transfrontier mobility of law”.80 In the particular case of OHADA, Member
States received their legal systems by imposition through colonisation; Uniform Acts are
being influenced by legal imports; and transnational rules are being transferred in Member
States through circulation. In all cases, it is commonly assumed that these processes involve
transfer from an advanced (parent) Civil or Common Law system to a less developed one. In
this particular case, the better rules are being transferred to OHADA Member States’ legal
systems. These transfers are meant to bring about technological change by filling in gaps or
replacing prior local laws.81
In the process of legal transplantation, there is a general assumption that law can be
defined as rules. Law is considered as bare propositional statements. It is these rules which
travel across jurisdictions, which are displaced, which are transplanted. Because rules are not
socially connected in any meaningful way, differences in historical factors and habits of
thoughts do not limit or qualify their transplantability. In this scenario, legal rules borrowed
from other systems easily fit in their new context. In the OHADA context, borrowing other
systems’ law is seen as just a method of speeding up the process of finding legal solutions to
similar problems – a process being encouraged all the more by the pressures towards
convergence brought about by globalisation. Legal transplantation might also be motivated
by the desire to have laws that are deemed better, modern or superior. A prestigious model
78
Ibid, p.13.
79
Watson (1993), p.21.
80
Twinning, W. (2004), ‘Diffusion of Law: A Global Perspective’, Journal of Legal Pluralism, XX, pp.4-5.
81
Ibid,p.18.
may therefore influence the development of the Member States legal systems by shaping
legal ideals, institutions, categories, and rules.82
However, the metaphor of legal transplantation implies the need for the rules being
transferred to be somehow “domesticated” to fit into their new context, as they may represent
different cultures and different realities.83 A legal rule cannot be regarded only as a rule in the
sense of bare propositional statement. Legal rules are buttressed by important historical and
ideological formations.84 Legal rules lie on the surface of legal systems and do not carry the
historical and ideological formations which produced them. Rules that are transferred from
one system to another are therefore a meaningless form of words. Thereby, the rules received
in the other system are different rules, and not the same rules.85 Transnational rules that are
transplanted through OHADA may therefore take on different meanings when applied in the
Member States’ legal systems. This study will focus on the legal system established through
OHADA, in particular on the different institutions created to apply transnational rules
borrowed from different systems and cultures. A particular focus will be on the application of
these rules in the Member States in order to determine whether a genuine legal
transplantation occurs throughout the process and identify the issues that arise as a
consequence.
D. Legal traditions/families
General characteristics and features shared by different legal concepts and institutions
have been identified, and allowed to classify legal systems, reducing them to a limited
number of categories known as legal families or legal traditions.86 OHADA being analysed
as a legal system creating transnational rules which are inspired from Western laws, it is
necessary to classify its framework within a legal tradition. This exercise will help to fully
Graziadei, M. (2008), ‘Comparative law as the study of transplants and receptions’, in Reinmann, M. and
Zimmermann, R. (eds), The Oxford Handbook of Comparative Law, Oxford, OUP, p.458.
82
Nelken, D. (2001), ‘Towards a Sociology of Legal Adaptation’, in Feest, J.. and Nelken, D. (eds.), Adapting
Legal Cultures, Oxford, Hart Publishing, p.13.
83
84
Ibid, p.59.
85
Ibid, p.61. See also Merryman, J.H., Clark, D.S., and Haley, J.O. (1994), The Civil Law Tradition: Europe,
Latin America, and East Asia, Charlottesville, va: Michie, p.50.
86
Ibid, p.18
understand the OHADA structure and its particular features. This is useful in order to
understand OHADA within its context and consider its expansion to countries from other
families/traditions.
Legal families can be described as a set of deeply rooted, historically conditioned
attitudes about the nature of law, about the role of law in the society, about the proper
organisation and operation of a legal system and about the way law is or should be made,
applied, studied, perfected, and taught. The idea of a legal tradition is useful as it puts a legal
system into a cultural perspective and relates a legal system to the culture of which it is a
partial expression.87 The concept of legal families originates from the idea that each law
constitutes a system, with its own vocabulary to express concepts, its own way of arranging
rules into categories, and its own techniques for expressing rules and process for interpreting
them.88 Each society has its own original structure within which its different rules, concepts
and institutions interact and are organised in categories, giving a particular meaning to these
different categories. This structure and these institutions and concepts are linked to specific
civilisation and particular ways of thinking.89
The classification of legal systems into families is a method used in comparative law
which simplifies the representation and facilitates an understanding of the world’s
contemporary legal systems. There is not, however, agreement as to which element should be
considered in setting up groups and, therefore, what different families should be recognised.
Some scholars base their classification on the law’s conceptual structure or on the theory of
sources of the law; others emphasise as a more significant criterion the social objectives to be
achieved with the help of the legal system or the place of law itself within the social order.90
As the majority of OHADA Member States are former French colonies, one would
assume that the OHADA system is mostly influenced by French law and can therefore be
considered as being part of the Civil Law tradition. The Civil law includes countries in which
legal science has developed on the basis of Roman ius civile. Rules of law are conceived as
87
Merryman (1985), pp.1-2.
88
Tetley, W. (1999), p.19
89
90
David, R. & Brierley, J.E.C. (eds) (1985), Major legal systems in the World Today: An Introduction to the
Comparative Study of the Law, 3rd edition, London, Stevens & Sons, p.19
Ibid, p.20
rules of conduct intimately linked to ideas of justice and morality. To ascertain and formulate
these rules falls principally to legal scholars who, absorbed by the task of enunciating the
“doctrine” on an aspect of the law, are somewhat less interested in its actual administration
and practical application – these matters are the responsibility of the administration and legal
practitioners.91 Since the nineteenth century, a distinctive feature of the family has been the
fact that its various member countries have attached special importance to enacted legislation
in the form of “codes.”92 In Civil Law, the code gives the judge a general statement of
principle as her starting-point. She may need to consult other cases, and legal writers, to see
how others have interpreted the text. In Civil Law, commercial law is specialised law; it
contains only some additional special and largely incidental rules for commerce. The rest
remains primarily covered by the civil code.93
In public as well as in private law, the same fundamental branches are found in all
countries of the Civil Law family: constitutional law, administrative law, public international
law, criminal law, the law of procedure, civil and commercial law, labour law, etc.94 This
conceptual similarity gives anyone familiar with one such law a great facility in
understanding the others. The substantive rules enacted in one or another may indeed differ,
but one immediately knows what they are about; the question asked or discussed is
understood; its context and nature are grasped without the subject being explained and
without having to adapt to a foreign way of thinking.95 The reason for this community of
thought derives from the fact that for centuries the science of law throughout continental
Europe was based on the same teachings rooted in Roman and Canon law.96
In countries of the Civil Law family, the legal rule is formulated, characterised and
analysed in the same way. In this family, in which doctrinal writing is held in high esteem,
the legal rule is not considered as merely a rule appropriate to the solution of a concrete case.
Through the systematising efforts of the doctrinal authors, the legal rule has risen to a higher
91
Ibid, p.22
92
Ibid, p.22
93
Cartwright, J. (2007), Contract Law: An Introduction to the English Law of Contract for the Civil Lawyer,
Hart Publishing, p.22.
94
David and Brierley (1985), p.84
95
Ibid, p.85
96
Ibid.
level of abstraction: it is viewed as a rule of conduct, endowed with a certain generality, and
situated above the specific application which courts or practitioners may make of it in any
concrete case. Digests of decided cases, form books and legal dictionaries are certainly useful
working instruments for practitioners, and they provide much of the raw material for jurists in
their work. But these compilations do not enjoy the high prestige associated with legal
scholarship.97
In Civil Law countries, legislation is seen as one coherent national confined system
that is essentially statutory, as such complete, and explainable from within. In this view,
legislation is seen as capable to cover all eventualities and capable of resolving all issues
arising. There is little room for other sources of law, like industry practice, customs and
general principles, the law is found through deductive and analogical reasoning from within
the code’s own system.98
All these feature of the Civil Law tradition can be found in most OHADA Member
States’ legal systems.
However, OHADA is a legal system alongside its Member States’ legal systems and
produces transnational rules which represent the union of rules taken from various legal
systems. The OHADA legal system is constituted of rules borrowed from other traditions
than its Member State’s Civil Law alone. OHADA can therefore be considered as a mixed
legal system, in the sense that it has been influenced by more than one legal system. Thereby,
considering this important fact that most legal systems are mixed, Esin Orucu has proposed to
classify legal systems into family trees.99 In this approach, it is essential to look at the
constituent elements in each legal system and to regroup legal systems on a much larger scale
according to the predominance if the ingredient sources from whence each system is
formed.100 All legal families can be reduced to four main groups: “Mixed systems with Civil
law”; “Mixed systems with Common law”; “Mixed systems with Customary law”; and
“Mixed systems with Muslim law”. With this classification, if a new family were to be
97
Ibid, p.95
98
Ibid, p.1.
99
Orucu, E. (2008), ‘What is a Mixed Legal System: Exclusion or Expansion?’, Electronic Journal of
Comparative Law, vol.12.1, p.1.
Orucu, E. (2004), ‘Family Trees for Legal Systems: Towards a Contemporary Approach’, in Van Hoeke, M.
(ed.), Epistemology and Methodology of Comparative Law, Oxford, Hart Publishing, p. 363.
100
created, ‘mixed systems’ would be a more appropriate name for it, with sub-categories.101
The point with Orucu’s classification is that all systems are mixed; it is only the nature of the
mix that varies.102 This classification seems the most adapted to a transnational legal system
such as OHADA, which is deeply rooted in its Member States’ Civil Law tradition but also
includes institutions borrowed from Common Law and Customary Law.
E. Legal culture
By trying to classify OHADA in one legal tradition, the objective is to identify
common features or characteristics necessary to understand the context in which OHADA
was created and established. The concept of legal culture is used at this stage of the analysis,
as it goes beyond characteristics featured by a legal system and focuses on the interaction of
the law with society. It refers to public knowledge of and attitudes and behaviour pattern
towards a community’s legal system.
Lawrence Friedman first introduces his version of the concept legal culture in the late
1960s, modelling it on the idea of political culture seen as the key to understanding voting
patterns and other factors which shape political systems. He defines it as what people think
about the law; lawyers and the legal order, it means ideas, attitudes, opinions and
expectations with regard to the legal system. In more elaborated discussions, however, he
helpfully distinguishes ‘internal’ legal culture – which acknowledges the special role in the
law of judges and other legal professionals and scholars – from what he calls ‘external’ legal
culture which refers especially to those individuals or groups who bring pressure to bear on
the law to produce social change.103
It consists of attitudes, values, and opinions held in society, with regards to law, the
legal system, and its various parts.104 Here the focus is on mentalités, which can be defined as
the frame of perception and understanding of a legal community so as to explicate how a
community thinks about the law and why it thinks about the law in the way it does. The focus
here is on assumptions, attitudes, aspirations and antipathies. This exercise is useful in
101
Orucu (2008), p.5.
102
Du Plessis (2008), p.481.
103
Ibid, p.112.
Cotterrell, R. (1997) ‘The Concept of Legal Culture’, in Nelken, D. (ed.), Comparing Legal Culture,
Dartmouth, p.15
104
understanding legal rationality within a specific system.105 Legal culture helps us in
considering how transnational law created by OHADA is developing and seeking
effectiveness by emphasising its locus within the community. Identifying legal culture within
the OHADA territory informs us on where OHADA finds its legal authority and legitimacy,
or more broadly its practical guarantees of effectiveness.106
Rules are but the outward manifestation of an implicit structure of attitude and
reference, they are the reflection of a given legal culture. The “ruleness” of the “rule” is a
more intricate notion than it appears in that a rule embodies a whole culture. The notion of
culture can be formed on the basis of the legal system or the legal tradition on which an
individual partakes. It derives from historical experience.107 Legal culture allows us to point
to the posited law beyond its materiality (black-letter rules) and focuses on the meaning of
the rules and the reason why it was created in the way it was.
Legal history is necessary in order to identify the OHADA legal culture. Legal history
confronts dramatically the basic issues of the relationship of law to society, and of the factors
in legal change: why does change happen when it does; how it does; and the direction of
change. Law in a society can only be explained by its history, often its ancient history and
frequently its contacts with foreign legal history.108 The OHADA legal culture is greatly
influenced by colonisation and the imposition of European legal systems in Africa. Although
colonisation is over and the colonies have disappeared, the colonial juristic mind-set has
survived. The large processes of ‘westernisation’, ‘modernisation’, ‘development’ and now
‘globalisation’ of law present the never-ending story of triumphant legal. The only history
that can guide the future of laws is that of ‘modern’ law, modern law meaning Western law.
This can be explained by the search for and the reliance on authority. The need for authority
is at the heart of both the impact of past legal history – including the long survival of
inappropriate law – and of borrowing law from elsewhere.109
105
Legrand, (1996), p.60.
106
Cotterrell, (2012), p.22.
107
Legrand, (1996), pp.56-57
108
109
Watson, A. (2004), ‘Legal Culture v. Legal Tradition’, in Van Hoeke, M. (ed.), Epistemology and
Methodology of Comparative Law, Oxford, Hart Publishing, p.1.
Ibid, p.2.
Thus, the prevalence of legal transplants, the main method of legal development, is in
large part due to the need for authority. Why does OHADA borrow its rules? One reason is,
of course, that it is easier to borrow than to create rules and institutions from new. Another
reason is that one system comes to be regarded as the most suitable donor. This explains why
most countries within the OHADA territory either kept the laws inherited from colonisation
or adopted new laws which were copied from former colonial powers. Reliance on this
system is more authoritative than others and guarantees the application of the law by
everyone. This search for authority removes the focus to some extent from the precise needs
of the particular society.110
Only an understanding of legal culture will illuminate and explain the interrelations
between the OHADA framework and its context, and its subsequent fundamental values.111
The different aspects of the legal culture will help understand why the OHADA structure is
shaped the way it is. Legal culture is also necessary to determine whether OHADA reflects
the needs of society.
Political economy
More recently, the OHADA legal culture has been influenced by other constraints,
such as trade, aid and alliances. The adoption of Western laws is sponsored by elites in
Member States who are concerned to modernise their society or otherwise bring it into the
wider family of advanced nations. Imported or imposed law is meant to change existing
contexts in the Member States rather than reflect them. In doing this, the hope is that the law
may be a means of resolving current problems by transforming the existing society into one
more like the source of such borrowed law. Borrowed law is deemed capable of bringing
about the same conditions of a flourishing economy which is found in the social context from
which the borrowed law has been taken.112 Borrowing foreign laws is also used as a condition
for trade, aid or bilateral cooperation.
This section which analyses the OHADA framework and its correlation with
economic development can be classified under the law and development theory. As provided
110
Ibid, p.3.
111
Ibid, p.5.
112
Ibid, p.118.
in the preamble of the OHADA Treaty, the OHADA system was created in order to attract
more investment and thereby incite development. By providing a set of stable expectations, it
is thought that the laws implemented through the OHADA system can stimulate the economy
by providing private entrepreneurs with greater certainty than exists in the Member States’
legal systems.113 This objective assigned to OHADA links law to economic growth and
reflects the law and development theory. Law and development explains the current practices
of those who seek to change legal systems in the name of development.”114It moves law to
the centre of development policy making; it changes also the rational for legal development
assistance. Law is considered as a tool to bring about development, and development means
economic growth.115
In recent decades, foreign direct investment (FDI) has come to be considered as an
important source of the capital and technology necessary for economic development. Most
governments have therefore sought new ways to induce foreign investors to locate within
their jurisdiction. 116 As it is implied that FDI flows are to some extent determined by the
effectiveness of the host State’s legal system, the founding members of OHADA decided to
establish a unified legal system capable of attracting more FDI. OHADA is meant to be an
effective legal system, which implements laws efficiently and predictably. This part of the
study will therefore focus on the correlation between the OHADA legal system and economic
development. It will analyse the establishment and designing of OHADA institutions with the
objective to attract more investment, and their impact on the Member States’ economic
development. The focus here is also on the funding of the organisation and the accession to
OHADA as a means to obtain foreign aid and attract more foreign investment. This section of
the analysis is necessary as it is a political economy of the OHADA process in order to
understand how the search for funding, foreign aid and more investment impact legal
harmonisation in West and Central Africa.
Greenberg, D.F. (1980), ‘Law and Development in Light of Dependency Theory’, 3 Research in Law and
Sociology, p.130.
113
114
Ibid, p.3.
115
Ibid, p.9.
Perry, A. (2000a), ‘Effective Legal Systems and Foreign Direct Investment: In Search of the Evidence’, The
International and Comparative Law Quarterly, Vol.49, No.4, p.779.
116
CONCLUSION
A full understanding of the OHADA framework and its particular context is necessary
in order to find out whether its current design is appropriate to support the establishment of
the AEC. As discussed in this paper, the OHADA harmonisation process is strongly
influenced by the Civil law background of its founding member states and makes its
expansion to countries from different legal traditions rather impossible.
However, certain aspects of the OHADA legal system, such as its judicial system and
the role played by its Common Court of Justice and Arbitration, have proven to be very
important in the establishment and expansion of the OHADA framework. The OHADA
experience on the uniform application of international legislation and enforcement of law
could be applied on a continent level and expanded to the different regional economic
communities which form the AEC. The study in this paper proves to be important as it
provides a full analysis of the OHADA structure and helped identify the specific areas of the
OHADA experience that could be used to further economic integration efforts on the
continent.