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CCJA: A Judgment Wrongly Considered As Of Last Resort Cannot Justify Referral To CCJA

The Common Court of Justice and Arbitration (CCJA) of the Organization for the Harmonization of Business Law in Africa (OHADA) stated in its Judgment No. 001/2017 of 26 January 2017 the principle that a judgment delivered by a court and wrongly considered as of last resort cannot justify referral to CCJA...

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CCJA: A Provisional Remedy Not Reported Within Eight Days Should Be Declared Null And Void

Judgment No. 005/2017 of 26 January 2017 of the Common Court of Justice and Arbitration (CCJA) of the Organization for the Harmonization of Business Law in Africa (OHADA) contains the principle that, it is unfounded the ground of an applicant in cassation which criticizes the judgment of the Court of appeal to have confirmed the lapse of the provisional remedy in that it has referred neither to copies of promissory notes on the basis of which the seizure was practiced nor denounced the said writ within eight days as required by Article 79 of the AUPSRVE...

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CCJA Confirms the Presumption of Liability of Road Carrier

The Common Court of Justice and Arbitration, CCJA, of the Organization for the Harmonization of Business Law in Africa, held that provisions of Sections 16 and following of the Uniform Act related to contracts of carriage of goods by road impose on the carrier a presumption of liability which can only be exempted under the conditions laid down in Sections 17 and following of the same Uniform Act that he must invoke himself...

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CCJA Sets aside application, as an unfamiliar procedure to the CCJA, thus inadmissible before the CCJA

In its judgment No. 029/2017 of 02 March 2017, the CCJA decided that an applicant’s request to set aside a judgment is inadmissible, this procedure being, pursuant to Section 32.2 of the Rules of Procedure, unfamiliar before the CCJA...

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CCJA: Is considered purely factual, the allegation of a party which said to have been ordered to pay the DI which is not one

The Judgment No. 005/2017 of 26 January 2017 of the Common Court of Justice and Arbitration (CCJA) of the Organization for the Harmonization of Business Law in Africa (OHADA) contains the principle that must be dismissed the ground of an applicant in cassation which criticizes the judgment of the Court of Appeal to have disregarded the meaning of Section 49 of the AUPRVE in that it sentenced him to damages while the said Court of Appeal did not pronounce condemnation for damages against him, such a ground is unsubstantiated and therefore purely factual...

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CCJA Reaffirms Its Supremacy Over Courts of Cassation of Member States

Is null and void, a judgment delivered by the Supreme Court of a Member State of the Organization for the Harmonization of Business Law in Africa, (“OHADA”), when the incompetence of the latter had previously been raised that the dispute fell within the application of a Uniform Act...

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CCJA: There Is No Conflict When Two Separate Decisions Of The Same Court Contradict Themselves

In its Judgment No. 065/2017 of 30 March 2017, the CCJA has decided that the appeal in cassation based on the inconsistency of grounds noted in two different judgments delivered on two different dates and between the same parties in relation to the same matter, must be dismissed on the ground that the implementation of Section 28 bis of the new Rules of procedure of the CCJA assumes that in the same decision a court has clearly contradicted itself by stating conflicting grounds...

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CCJA: Provisionary Seizure Are Real Enforcement Proceedings

The Judgment No. 005/2017 of 26 January 2017 of the Common Court of Justice and Arbitration (CCJA) of the Organization for the Harmonization of Business Law in Africa (OHADA) contains the principle whereby is unfounded the ground of appeal which criticizes the judgment of the Court of Appeal to have violated Section 28 of the AUPRVE in that the applicant alleges that the provisional seizure are not real enforcement proceedings while the provision referred to lists them among enforcement proceedings...

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CCJA Cannot Evoke If The Decision It Cancels Is Not Served On The Parties Before The National Court

From the moment that the cancellation decision has not been served on all the parties before the national court for the purposes of cassation appeal to the Common Court of Justice and Arbitration, “CCJA,” there is no reason for evocation in accordance with Section 52 of the Rules of Procedures...

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CCJA: The Bailiff Does Not Have Exclusive Powers To Seize The Competent Court In Case Of Difficulty In The Compulsory Execution Of A Title

For the Common Court of Justice and Arbitration, “CCJA”, of the Organization for the Harmonization of Business Law in Africa, “OHADA”, when there are difficulties in the execution of an enforceable title, the initiative to seize the competent court conferred on the bailiff does not prohibit people with interest and quality to act in their own names for the defense of their interests...

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CCJA Dismissed the Appeal of Côte d’Ivoire Télécom Company for Foreclosure

In its Judgment No. 124/2017 of 18 May 2017, in the case that opposed Côte d’Ivoire Télécom company to Intel Afrique company, the Common Court of Justice and Arbitration (CCJA) of the Organization for the Harmonization of Business Law in Africa (OHADA) has confirmed the judgment of the Court of Appeal dismissing the injunction request to pay introduced eight (8) years after issuing the enforcement orders...

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OHADA Bar Association: Shaky Victory of African Lawyers and Bar Associations

The initiative of setting up an association of lawyers performing at the Common Court of Justice and Arbitration (CCJA), OHADA Bar Association, was brought specially by the Paris Bar in the early June 2015. It was criticized by French speaking African lawyers and Bar Associations from member States of the Organization for the Harmonization of Business Law in Africa (OHADA)… Read More...

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OHADA: Various Remedies Against an Arbitral Award

The African legislator uses the word “arbitration” without defining it. Commonly, it is considered as private method of the dispute settlement based on the Agreement of the Parties.Thus, arbitration is considered by some authors as conventional justice. Arbitration is a dispute settlement procedure by a private person, called an arbitrator, who is vested with the power to judge by the Parties. It is predominantly used for the settlement of disputes arising from complex international contracts… Read More...

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Recent measures on the form of the articles of association and the minimum capital of SARL in the DRC: advantages and weaknesses

The Minister of Justice and Human Rights and the Minister of Finance in the DRC signed jointly in December 30, 2014 theinterdepartmental Order No. 002/CAB/MIN/JGS &DH/014 and No. 243/CAB/MIN/FINANCES/2014 determining the form of the Articles of Association and the minimum capital of a limited liability company. According to this order, the following provisions must henceforth apply to single-member and multi-member SARL: (1) the Articles of Association are established by notarial deed or private agreement (article 1); (2) the share capital is freely set by the shareholders, taking into account the business (article 2); (3) the pay-in slip cleared by a credit or microfinance...

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May a foreign financial institution act as security interests agent in the DRC

By Arnaud Tshibangu Mukendi[1] Introduction The Democratic Republic of the Congo (the "DRC") has ratified the founding treaty of the Organization for the Harmonization of Business Law in Africa (hereinafter "OHADA[2]") dated July 12, 2012, which entered into force on September 12, 2012. The DRC has become, since then, the seventeenth member state of OHADA[3]. Consequently, all the OHADA Uniform Acts are part of the Congolese law and are directly applicable and binding within its territory without any further legal steps internally[4]. The OHADA Uniform Acts include the revised Uniform Act on security interests (hereinafter “UAS”), adopted on December 15, 2010. The...

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Burkina Faso: Le Conseil des ministres adopte le projet de loi portant Code Minier

Jonathan  van Kempen and Antoine Luntadila Kibanga Le 2 octobre 2013, le Conseil des ministres du Burkina Faso a adopté un projet de loi portant Code Minier en République du Burkina Faso. Ce projet de loi, visant à modifier et remplacer la loi n°031-2003/AN du 08 mai 2003 portant Code Minier au Burkina Faso, était en discussion depuis le début de l’année 2012. Par l’adoption de ce nouveau code minier, le Burkina Faso entend principalement augmenter ses recettes fiscales du secteur minier tout en mettant l’accent sur la promotion de son économie locale et la contribution du secteur minier au développement...

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DRC: Non-Transferability of Telecom Licenses Challenged by OHADA

The principle of non-transferability of telecommunications licenses challenged by the OHADA Law as a result of the accession of the Democratic Republic of the Congo to OHADA Alain Serge Kasende M’bay  Since September 12, 2012, OHADA Law (Organization for the Harmonization of Business Law in Africa) is directly applicable and binding, as a domestic positive law, in the Democratic Republic of the Congo (“DRC”). In accordance with article 53, section 2 of the OHADA Treaty[1], all provisions thereof, regulations and Uniform Acts (“OHADA Law”) adopted before the accession of the DRC come into force in the DRC sixty (60) days after the date...

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Accession of DRC to OHADA: Impact on State-Owned Companies

Protection of state-owned companies subsequent to the accession of the Democratic Republic of Congo to OHADA Emery Mukendi Wafwana and Upio Kakura Wapol On September 12, 2012, the Democratic Republic of Congo (DRC) became party to the community law, Treaty, Decisions and Uniform Acts of the Organization for the Harmonization of Business Law in Africa (OHADA Law) , thus making the country, the OHADA 17th member State. This membership does not create any coexistence problem due to OHADA supranationality of its norms that make its legal and regulatory provisions binding and repealing. However, such enforceability of OHADA Law seems to have worried in some ways the...

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DRC: Impact of the “Doing Business” Report on tax and duties payments

Progress towards tax and duties payment in the Democratic Republic of the Congo in connection with the “Doing Business Report”  Eric Tshimanga Mukendi The DRC Government initiated in the last few years a set of reforms in order to improve the business climate which has been extensively deteriorated over time. One reform in particular is the DRC membership to OHADA, the simplification of payments of duties to the State through the implementation of a single window, etc. These actions are a result of the World Bank recurrent reports published in the context of ‘’Doing Business’’ which ranked the Democratic Republic of the Congo...

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