Published 24 October 2017
This paper examines issues related to the enforcement of arbitral awards under the OHADA Uniform Act on Arbitration (the UAA). The topic sits within the broader issues presented by the doctrine of sovereign immunity and the interplay between enforcement of arbitral awards and the national laws of Member States. However, I do not intend to focus on an assessment of the theoretical analysis underpinning the application of the sovereign immunity doctrine in the jurisprudence of the OHADA Member States; as it is a huge and complex subject that requires a different kind of analysis and study. Rather, I will limit myself to (i) the immunity of public corporations from execution under OHADA law, which I believe is a significant aspect of the doctrine of sovereign immunity and, (ii) an issue related to but different in its nature, scope and application to immunity of public corporations, that is, the inalienability of assets or property under OHADA law. I dare to make the case that, in the absence of guidance by way of a judgment or an opinion from the OHADA Common Court of Justice and Arbitration (CCJA) and some broad understanding as to how Member States exercise the right to declare assets or property inalienable, the application of each of the principle of the immunity of public corporation from execution and the inalienability of assets or property, or a combination of both, may pose serious challenges to enforcement, by way of forceful execution, of arbitral awards made under the OHADA regime. Immunity of public corporations and inalienability of assets or property are not matters covered in the UAA, rather they are set out in the OHADA Uniform Act on Simplified Recovery Procedures and Measures of Execution (UASPME).
For the ease of exposition, I will divide the paper into five rubrics. In the first I will provide a background to the OHADA Treaty, whereas in the second I will discuss some salient features of the UAA. In the third rubric, I will discuss issues related to enforcement within the OHADA zone, whereas in the fourth I will raise some considerations to be borne in mind when attempting to enforce awards outside of the OHADA zone. The fifth will be the conclusion.
I would like this paper to be read within the context of on-going reform of arbitration laws and the movement for the harmonization of business laws in the Caribbean.
Footnotes omitted from this introduction.