Preparation by UNIDROIT of a draft OHADA Uniform Act on Contract Law



I. PRESENTATION: OHADA – UNIDROIT

The Organisation for the Harmonisation of Business Law in Africa (OHADA) was created by the Treaty on the Harmonisation of Business Law in Africa signed on 17 October 1993 at Port-Louis (Mauritius). It is open to any State in the African continent, and currently has 16 member States.1 The Organisation aims at establishing a unified, secure and up-to-date legal environment with a view to boosting economic activity and investment in its member States.2

OHADA has now completed eight Uniform Acts3 and further Acts are in the pipeline. Following its meeting in Bangui in March 2001, where it decided to include contract law in the harmonisation programme, the OHADA Council of Ministers at its meeting in Brazzaville in February 2002, instructed the Permanent Secretariat to approach UNIDROIT in recognition of the latter’s expertise in this field in preparing the UNIDROIT Principles of International Commercial Contracts, specifying that the text to be drafted by UNIDROIT should take account of recent international trends in contract law and reconcile the concerns of the romano-germanic and common law legal systems.

The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental organisation operating worldwide, which since 1926 has been preparing international instruments (conventions, uniform laws, principles, etc.) in the fields of international trade law and uniform private law in general. Based in Rome (Italy), UNIDROIT operates on the basis of its member States’ mandate (63 member States from the five continents at different levels of economic development and representing the different legal traditions) and collaborates with non-Member States, intergovernmental regional and international organisations and national institutions, in particular universities and professional associations.

1 Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Côte d’Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Niger, Senegal, Togo. The accession of the Democratic Republic of the Congo is underway.

2 The constitutive treaty states as its objective “the harmonisation of business law in the States Party by means of the elaboration and adoption of simple, modern rules geared to the state of their economies, by implementing appropriate judicial procedures, and by promoting recourse to arbitration for the settlement of disputes arising out of contracts.”

3 On general commercial law – 1997; on commercial companies and economic interest groups – 1997; on organising securities – 1997; on simplified recovery procedures and measures of execution – 1998; on organizing collective proceedings for wiping off debts – 1998; arbitration law within the framework of the OHADA Treaty – 2000; on organizing and harmonizing company accounting systems – 2000; on contracts for the carriage of goods by road – 2003.

II. THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS

The UNIDROIT Principles of International Commercial Contracts constitute a major, unique achievement in the efforts to harmonise the general law of contracts at world-wide level. Fruit of the work of a group of experts on contract law representing the main legal systems of the world, they combine scholarly and practical analysis. The chapters, which deal with different aspects of the general law of contracts, are made up of provisions, accompanied by comments and practical illustrations which serve as an aid to understanding how the Principles may be applied, the whole forming a sort of annotated "code". The third edition of the the Principles (which is expected to be published in June 2011) comprises a Preamble and 210 provisions divided into eleven chapters on the following subjects: general provisions; formation and authority of agents; validity; interpretation; content, third party rights and conditions; performance (including hardship); non-performance; set-off; assignment of rights, transfer of obligation, assignment of contracts; limitation periods; plurality of obligors and of obligees).

A flexible instrument that will be applied when chosen by business persons or domestic legislators, and an impartial instrument used in the settlement of disputes – in particular those submitted to arbitration –, the UNIDROIT Principles, since the adoption of the first edition of the Principles in 1994, have been widely recognised for the quality of the solutions they provide (concern for contractual fairness, acceptance of the rules contained in different legal systems, but also innovations where this was considered desirable). Their success is amply borne out by the number of legal reforms they have inspired, by their use in contract practice and in arbitration (most recent domestic legislation on arbitration permits arbitrators to apply non-domestic rules of law) and in their impact on legal writings and the education of young generations of lawyers.

The full text of the UNIDROIT Principles 2004 has been posted on the UNIDROIT website at http://www.unidroit.org/english/principles/contracts/principles2004/integralversionprinciples2004-e.pdf together with further information on the Principles http://www.unidroit.org/english/principles/contracts/main.htm as well as access to a database of international case law and bibliography at http://www.unilex.info.

III. PREPARATION BY UNIDROIT OF A PRELIMINARY DRAFT OHADA UNIFORM ACT ON CONTRACT LAW

Against this background, UNIDROIT acceded to the request of the OHADA Council of Ministers by providing the necessary expertise for the preparation of a draft Uniform Act, in the person of Professor Marcel FONTAINE (Emeritus Professor, former Director of the Centre de droit des obligations, Faculty of Law, Catholic University of Louvain-la-Neuve, Belgium, and member of the UNIDROIT Working Group for the preparation of the UNIDROIT Principles), with the financial support of the Swiss Government (Development and Cooperation Office). The objectives and drafting methods were decided jointly by the OHADA and UNIDROIT Secretariats.

Following preparatory work and broad consultations with African experts and specialists, in particular on the occasion of a series of visits to nine OHADA member States, Professor Fontaine completed a preliminary draft Uniform Act on Contract Law, accompanied by an Explanatory Note. These texts were transmitted for consideration by the UNIDROIT Secretariat to the OHADA Permanent Secretariat in February 2005. Once this round of consultations is complete, the preliminary draft will be finalised at a meeting of the national commissions to be convened by the Permanent Secretariat of OHADA with a view to its adoption by the Council of Ministers of OHADA as soon as the Common Court of Justice and Arbitration of OHADA has issued a favourable opinion on the text.

Preliminary draft OHADA Uniform Act on Contract Law and Explanatory Note

IV. COLLOQUIUM ON "THE HARMONISATION OF CONTRACT LAW WITHIN OHADA" – OUAGADOUGOU, 15-17 NOVEMBER 2007

The Colloquium on "The Harmonisation of Contract Law within OHADA" organised by UNIDROIT and the Training and Research Department (UFR) for Legal and Political Science of the University of Ouagadougou, in association with the Organisation for the Harmonisation of Business Law in Africa - OHADA, was held in Ouagadougou from 15 to 17 November 2007 under the chairmanship of Mr Filiga Michel Sawadogo, Professor at the Training and Research Department (UFR) for Legal and Political Science of the University of Ouagadougou.

Programme – Conclusions – Report (in French only) - Full text of the Acts published in Uniform Law Review 2008-1/2

V. SELECT BIBLIOGRAPHY AND COMMENTARIES on the preliminary draft OHADA Uniform Act on Contract Law

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