La Tribune Afrique : “The new mediation in the OHADA space, for better access to justice ” by Bertrand Debosque and Astrid Dessi Foulon
By Bertrand Debosque, partner and Astrid Dessi Foulon, associate.
On 27 November 2017, the Council of Ministers of the Organization for the Harmonization of African Business Law (OHADA) adopted a 10th uniform act on mediation. This text, which will be published in the Official Journal of the organization no later than 27 January, will enter into force within 90 days of its publication.
Announced since 1999, the adoption of this act required consultation and work of the various OHADA National Commissions, the monetary unions of the OHADA area (UEMOA and CEMAC), including the United Nations Commission on International Trade Law under the cooperation agreement that it signed on October 26, 2016 with the organization. The introduction of mediation into the legal arsenal of the organization thus confirms the willingness of Member States to promote alternative modes of settlement of conflicts in the OHADA area, and make their economies more attractive, insofar as their non-harmonized judicial system leaves room for diverging interpretations of the texts by the national courts.
In the absence of a uniform judicial system, the new Uniform Act marks a step forward in many respects for civil and commercial justice.
Institutionalization of “traditional” amicable settlements
According to a study published by AfroBarometer in March 2017, after a survey of 53,935 people from 36 African countries, 43% of respondents do not trust the justice system, 33% believe that judges are corrupt and only 13% have settled their litigation in Court in the last 5 years. The results of this study confirm the unfavorable conditions of access to justice (expensive legal fees, lack of access to a lawyer or legal texts) which can also be explained by the rule of so-called “traditional” amicable settlements that are less expensive. Indeed, in the OHADA area, where 57% of the population lives in rural areas and sometimes far from any legal or professional infrastructure of justice, there still exists the amicable settlement of disputes under the palaver tree; protagonists debating before a jury formed by the population and a judge whose role is often entrusted to a traditional authority.
Although some Member States have already resorted to mediation, through the adoption of a special text or the setting up of a mediation center, the OHADA reformers wished to give a uniform legal framework to this ancient amicable settlement method in order to improve the conditions of access to justice in the OHADA area, among which the possibility of having multiple remedies.
The simplified implementation of mediation in the OHADA area
Organized around 18 articles, the uniform act on mediation frames the modalities of recourse to mediation, the conditions of appointment of the mediator, and the forced execution of the mediation agreement.
Article 1 of the Uniform Act broadly defines mediation as “any process, whatever its name, in which the parties request a third party to help them reach an amicable settlement in regard to a dispute, conflicting relationship or disagreement (hereinafter “dispute”) arising from or related to legal or contractual relationships, involving natural or legal persons, including public entities or States.”
In principle, “Ohadian” mediation is open to all, for a commercial or civil dispute, regardless of the existence of a contractual relationship and without the need to certify the existence of a dispute. The text implicitly states that the mere will of the parties, who wish to be “assisted”, is an essential condition for the implementation of the mediation, thus recalling the principle of freedom of contract.
Thus, as soon as it comes into force, citizens of the Member States, local or foreign companies will be able to choose a standardized simplified procedure of mediation which should allow to considerably save time, when the duration of a trial and the delay to obtain a judgment in the OHADA space can reach 1,095 days (3 years approximately) according to the latest report from Doing Business in the member states of OHADA 2017.
The Council of Ministers of the Organization has opted for a simple procedure that can be implemented by the most diligent party even in the absence of any convention. Indeed, through a written invitation to mediation, sent by any means (without precision in the uniform act), the mediation can be organized if accepted by the other party within 15 days from receipt of the invitation, in accordance with the rules freely chosen by the parties. However, when the parties make the choice of an institutional mediation the regulation of this institution is binding on them.
In order not to lock up the parties in the mediation procedure, the Uniform Act provides for the suspension of the limitation period.
Once the mediation is accepted, the parties will be able to choose freely and by mutual agreement a third party mediator, independent, impartial and free from any conflict of interest, natural or legal person, without distinction of nationality, and/or to be assisted in appointing the mediator by an appointing authority. In this case again, the reformers did not foresee any restrictions on the status of the “appointing authority”. They only specify that it may be “a center or an institution offering mediation services”, such as, for example and the list is non-exhaustive, the Ouagadougou Arbitration, Mediation and Conciliation Center, or the Conciliation and Arbitration Center of Mali. An appointing authority could therefore be a mediation center located in a non-OHADA state. It can be seen as a new market where legal professionals will compete with other professions.
The mediator is not a judge, its role is to help the parties, whether assisted or not by their lawyer, find a solution to their dispute in accordance with public order from the exchanges and information collected, without imposing their solution. The information provided during the mediation procedure is confidential and can only be disclosed in the cases exhaustively listed in Articles 10 and 11 of the Uniform Act on Mediation.
After various exchanges and receipt of the recommended expert’s report, if any, by the mediator, the mediation ends in the best case by a written agreement signed by all the parties and by the mediator if the parties so wish. This agreement will have the value of the agreed thing, i.e. it will produce effects only between the parties just like a new contract that binds them.
In order to guarantee the forced execution of the mediation agreement and confer on it the authority of the settlement, the parties will have the choice between filing a notary’s minute for authentication of the signatures and issuing a binding copy, or filing a request for the homologation of the agreement or exequatur of the competent jurisdiction. The homologation order is made, after verifying the authenticity of the agreement and its compliance with the public order, within 15 working days; otherwise, the homologation is deemed to have been granted.
Although it is appreciated that the text limits the role of the Court seized, it also refrains from providing details on the notion of “public order”. Interpretation of the notion of public order will be at the sole discretion of the national jurisdictions seized, which we hope will be able to regain the confidence of citizens and economic actors.
Finally, it should be noted that according to Article 16 of the Uniform Act the parties have two remedies: lodging an appeal against the act of homologation or exequatur before the Cour Commune de Justice et d’Arbitrage (CCJA) (Joint Court of Justice and Arbitration) if one of the parties considers that the mediation agreement is not in accordance with public order and seizing the CCJA in case of refusal of homologation or exequatur.
Once again, OHADA innovates in its desire to improve the business environment of its Member States.
Mediation is introduced a few years after it has been efficient in giving better access to justice in France in particular, and in other member states as well. Moreover, thanks to a simplified procedure, mediation should be a remedy of choice that is accessible to all. However, thanks to the training of local professionals and the multiplication of mediation centers, it is to be hoped that mediation will not be rejected on the grounds that it would be too expensive. The costs of mediation often include a right to open the mediation file in the centers already in place in the OHADA area (approximately 50,000 FCFA, i.e. € 75), in addition to administrative costs and mediator’s fees. To these expenses, any notaries’ fees or homologation / exequatur expenses will have to be added where applicable.
Member States should give themselves the means to make mediation an effective tool towards improving the conditions of access to justice. Through awareness campaigns in association with legal professionals, control of the costs so that it remains accessible to all, and training sessions, mediation in the Member States could be pivotal in enhancing justice and improving the business environment in the OHADA area, as demonstrated with the training offered within OHADA’s Ecole Régionale Supérieure de la Magistrature (ERSUMA).