On 27 June 2012 the Democratic Republic of Congo (DRC) took an
immense leap forward in becoming the 17th Member State of the
Organisation pour l'harmonisation du droit des affaires en
Afrique (Organisation for the harmonisation of business laws in
Africa) (OHADA).
More than a year after the publication of the law authorising its
membership in the organisation and seven years since the
declaration of its initial intention to do so the DRC announced its
ratification of the instruments permitting its accession to the
1993 Treaty of Port-Louis establishing OHADA.
The DRC has now deposited its instruments of ratification in the
OHADA depository state Senegal which will render the OHADA laws
applicable in the DRC in September 2012.
The OHADA System
OHADA is a regional organisation seeking to establish a unified
set of business laws to be used across its Member States intending
thereby to provide legal stability in commercial fields.
The OHADA objectives were drafted bearing in mind that regional
integration in Africa is a principal condition for the development
of the African continent and the amelioration of the living
conditions of African people.
Further economic integration is one of the bases of the African
Union and legal integration is the driving force behind economic
integration.
A legal revolution for the DRC
The introduction of the nine OHADA statutes representing
modernity and simplicity in francophone African business law will
overhaul the law in many spheres. They range in substance from
company law to insolvency law arbitration securities law and
methods of execution and debt recovery.
Most notable is the long-overdue replacement of the DRC company legislation, currently based on the 125 year old Décret du Roi–Souverain du 27 février 1887 relatif aux Sociétés Commerciales (DRC Companies Act).
The OHADA Companies Act provides that there will be a
transitional period of two years from the date that it comes into
force during which time entities are to amend or redraft their
articles of association to harmonise them with the OHADA Companies
Act. The previous laws will continue to apply to companies which
have not yet conformed to the OHADA Companies Act during this
period. Entities created after the OHADA Companies Act comes into
force in September 2012 however will be created in accordance with
OHADA law. This means that two sets of company law legislation will
coexist for approximately two years: the OHADA and old DRC
Companies Acts which may lead to some confusion: the notion of a
SARL in the DRC for example is similar to the SA in OHADA law which
is a public limited company. On the other hand the notion of a SPRL
is akin to an SARL in OHADA law which is a private limited
company
Enterprises will further need to bring their accounting systems in
line with OHADA principles and prepare and file annual financial
statements in a proper manner as set out in the OHADA Accounting
Systems Act. This statute will also enter into force in September
2012.
One of the most recently modified OHADA statutes, the OHADA
Securities Act which came into force in OHADA Member States in 2011
will become applicable with immediate effect in the DRC in
September 2012 but will apply only to those forms of security which
are consented to and constituted after its entry into force. Those
securities which were established prior to the application of the
OHADA Securities Act will remain subject to the laws under which
they were created until they expire.
The field of alternative dispute resolution (ADR) will be brought
into line with the OHADA laws thereon concerning in particular
conciliation and arbitration. As in the other Member States an
OHADA arbitral tribunal will be established in the DRC and the
OHADA Arbitration Act will become enforceable from September 2012
and will apply to all arbitration proceedings arising after its
entry into force where the proceedings take place in an OHADA
Member State.
The DRC is not party to the New York Convention, and the OHADA
Arbitration Act does not cover the enforcement of foreign arbitral
awards in Member States. The latter though provides a significant
alternative for those entering into a dispute resolution process
(in line with the OHADA objective to promote ADR) who without OHADA
might have been faced with a more cumbersome and time-consuming
enforcement process under DRC law. No matter a contract's
substantive law and the arbitral institution and corresponding
procedural law chosen by the parties if the arbitration takes place
in a Member State, such as the DRC the provisions of the OHADA
Arbitration Act relating to the enforcement of an arbitral award
may be used in the DRC or any other OHADA Member State.
Also of great significance in the field of dispute resolution is
the existence of the overarching Common Court of Justice and
Arbitration of OHADA (the CCJA) which hears appeals on judgments
based in OHADA law initially made in the courts of the various
OHADA Member States and soon also from DRC courts. The existence of
the CCJA will provide an assurance of transparency judicial
experience and legal certainty in the application of OHADA law
including in the DRC.
The OHADA Member States other than the DRC now are: Benin Burkina
Faso Republic of Congo Cameroon Comoros Chad Central African
Republic Côte d'Ivoire Gabon Guinea Guinea Bissau
Equatorial Guinea Mali Niger Senegal and Togo.
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