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AMBITIOUS GOALS
• making progress toward African unity
• creating a climate of trust in the economic systems of the contracting states
• a view to creating a new center of development in Africa
MEANS TO AN END
• harmonized, simple, modern
and adapted business law
• diligently applied
• provide legal certainty
LEGAL CERTAINTY “prediction of the incidence of the public force through the
incidence of the courts” (Holmes)
It is best served by a set of laws which are:
comprehensive
definite
coherent
diligently applied
COMPREHENSIVE SET
OF LEGISLATION
• centered on the micro-level (the productive unit)
• groundwork for better protection of property and capital formation
D IRECTLY APPLICABLE
the drafters intended the uniform
acts to be specific enough to be
directly applicable without
implementing regulation
COHERENCE
• art. 10 of the OHADA Treaty provides that
the uniform acts preempt all domestic
statutes covering the same subject matter
• the Court of Justice of the OHADA (CCJA)
guarantees the uniformity of interpretation
of the OHADA law
INNOVATIONS
• the status of entreprenant from the
Uniform Act on General Commercial Law
• institution of a movable assets registry
(RCCM) from the Uniform Act on General
Commercial Law
• elimination of the requirement of the
physical dispossession of the grantor with
respect to tangible pledged assets from
the Uniform Act on Secured Transactions
A FEW FLAWS • bankruptcy may be the “unwanted
handmaiden of commercial debt…” but
OHADA member states have no significant
level of commercial lending
• no mediation and conciliation
• only the Uniform Act on Community Owned
Business and the new Entreprenant status
acknowledge the existence of an informal
sector (which accounts for 60 to 85 % of the
GDP of the OHADA member states)
ENOUGH LEGISLATING ,
NOW ENFORCE
• further legislating activity risks
overreaching
• coordination necessary with other regional
bodies producing law such as UEMOA,
ECOWAS, CEMAC
• when markets become more concentrated
and less local, the drafters should move to
the next step
INSTITUTIONAL
CHALLENGES
• budgetary constraints
• CCJA has case backlog in part
structural and in part traceable to
the turmoil in Cote d’Ivoire
CHALLENGES SPECIFIC
TO THE RCCM
the RCCM is a movable assets registry
• computerization requires better coordination among donors, as well as between the OHADA institutions and the member states
• no reliable civil status registry in most member States
IMPLEMENTATION
CHALLENGES
• coexistence of the OHADA legislation and
non-abrogated domestic provisions
• slow and difficult appropriation by
domestic courts
OHADA REMAINS
ABSTRACT • at the state level it is virtually unknown to
accountants, money lenders, court
registries, chambers of commerce,
business registration units, micro finance
institutions, banks, insurance companies,
arbitration chambers, etc.
• necessary to inventory all institutions and
professionals impacted by OHADA in
everyday activity
JUDICIAL SPACE
• the decisions of the CCJA are directly
applicable in the member states
• no adequate mechanism for recognition
and enforcement of final judgments from
lower courts applying the OHADA within
the OHADA space