Ohada 11.15.2011

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Ohada 11.15.2011

  1. 1. 16 COUNTRIES 5 INSTITUTIONS 9 UNIFORM ACTS
  2. 2. OHADA
  3. 3. Here… I S O H A D A F O R L E G A L T E C H N I C I A N S ?
  4. 4. O R D O E S I T S E R V E O T H E R P U R P O S E S ?
  5. 5. 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
  6. 6. MEANS TO AN END • harmonized, simple, modern and adapted business law • diligently applied • provide legal certainty
  7. 7. 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
  8. 8. INCREASED LEGAL CERTAINTY? • mixed response • state level implementation is Achilles’ heel
  9. 9. ACHIEVEMENTS • a new supranational organization – no small feat • nine uniform acts
  10. 10. COMPREHENSIVE SET OF LEGISLATION • centered on the micro-level (the productive unit) • groundwork for better protection of property and capital formation
  11. 11. DIRECTLY APPLICABLE the drafters intended the uniform acts to be specific enough to be directly applicable without implementing regulation
  12. 12. 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
  13. 13. 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
  14. 14. 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)
  15. 15. 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
  16. 16. INSTITUTIONAL CHALLENGES • budgetary constraints • CCJA has case backlog in part structural and in part traceable to the turmoil in Cote d’Ivoire
  17. 17. 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
  18. 18. IMPLEMENTATION CHALLENGES • coexistence of the OHADA legislation and non-abrogated domestic provisions • slow and difficult appropriation by domestic courts
  19. 19. 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
  20. 20. 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
  21. 21. “ LE DROIT N ’ ATTEINT SA PLÉNITUDE Q U ’ EN SE RÉALISANT. ” H E N R I M O T U L S K Y

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