Organization pour l'harmonisation en afrique du droit des affaires

from Wikipedia, the free encyclopedia

The organization pour l'harmonisation en Afrique du droit des affaires (abbreviated OHADA , in German: Organization for the Harmonization of Business Law in Africa ) is an international organization of African states founded in 1993 . The aim of the organization based in Yaoundé is to create a common commercial law for a common economic area. The participating states are the fourteen countries of the CFA franc zone , which is pegged to the euro, as well as the Comoros and Guinea . The Democratic Republic of the Congo was the last to join OHADA in 2012 . A total of 170 million people live in the member states of OHADA.

The member states of OHADA in green. The Democratic Republic of the Congo, which joined in 2012, in dark green.
The almost congruent CFA franc zones:
African countries with the CFA franc as their currency:
dark green: CFA franc BCEAO ( UEMOA economic union )
light green: CFA franc BEAC (economic union CEMAC )

General

Least Developed Countries

The organization was founded on October 17th, 1993 in Port Louis , Mauritius. A legal union was considered at a meeting of West African finance ministers in April 1991. This idea took shape at the meeting of the African heads of state of the CFA franc zone on October 5, 1992 in Libreville . This initiative, led by Abdou Diouf, was designed to win the trust of foreign investors by presenting modern laws that meet the demands of modern commerce. Many OHADA countries are linked by their former membership of the Union française or Communauté française . All countries in the franc zone have joined OHADA. The CFA franc zone is formed by the countries in which the Central African currency CFA franc BEAC or the West African currency CFA franc BCEAO is valid. The former French Guinea , which is not a member of the franc zone, as well as the non-French members of the franc zone Guinea-Bissau and Equatorial Guinea also belong to the OHADA . The peg of the CFA franc with a fixed exchange rate to the franc or euro shows the strong economic and political influence of France. The importance of the CFA franc in OHADA can be seen from the fact that it is the base currency in company law according to Art. 906 AUSC. On the part of the European Union, most of the OHADA countries benefit from the development policy instrument of the General System of Preferences (GSP), as imports from Least Developed Countries are exempt from customs duties. It is criticized that the OHADA was tailored to large foreign companies and offers little for small and medium-sized companies, as well as for agriculture. The DR Congo acceded in 2012 with the deposit of its instrument of ratification of the treaty with the depositary of Senegal. The list of applicants for membership is long: Burundi . Cape Verde , Djibouti , Ethiopia , Ghana , Madagascar , Mauritania , Mauritius , Nigeria , Rwanda , Sao Tomé and Principe Madagascar is already adapting its legislation to the acts of the organization without a formal membership.

Community facilities

The OHADA maintains four community facilities:

  • The Council of Finance and Justice Ministers, who meet once a year to decide on "Actes Uniformes". Regulations that create nationally applicable and uniform commercial law. The Council of Ministers decides unanimously.
  • A permanent secretariat in Yaoundé that prepares the annual meeting and is part of the council conference.
  • An administrative college in Porto-Novo , the ERSUMA ("École Régionale supérieure de la Magistrature"), which trains and educates judicial officers and lawyers in the member states.
  • A joint court and arbitration court, the CCJA ("Cour commune de justice et d'arbitrage) in Abidjan : The court consists of seven elected judges. The term of office of seven years can be extended once.

Acte uniforme

The "uniform acts" are similar to the regulation (EU) .

General commercial law

Acte uniforme relatif au droit commercial général (AUDCG) is the uniform act on commercial law. The traders (natural and legal persons) have been subject to the rules of this Single Act since January 1st, 1998 (Art. 289). The act was accepted on April 17, 1997 and published in the official OHADA journal on October 1 (JO OHADA n ° 1 du 1er octobre 1997).

Book 1 - Statut du commercant

The provisions are for commercial transactions (Art. 1) and determine: businessman Art. 2, commercial transactions (Art. 3ff.) And exceptions (Art. 5ff.), Trading books with accounting obligations, (Art. 13ff.), Registers for trading and for mobile loans (RCCM).

Book 2 - Registre du commerce et du credit mobilier

The general part of the regulation (Art. 19ff.) Stipulates that the register is administered by the office of the competent jurisdiction. The data are collected in a national file and in a (over) "regional" file that is administered by the Court of Justice in Abidjan. Art. 25ff regulate the commercial register and its effects (Art. 38ff.), Art. 44ff regulate the mobile loan register and its effects (Art. 64ff.).

Book 3 - Bail commercial et fonds de commerce

Art. 69ff. regulate the business lease: With regard to the "bail commercial" (lease of the business premises) in cities with over 5 million inhabitants, Art. 69ff. and with regard to the “Fonds de commerce” (leasing of the business), Art. 103ff. relevant.

Book 4 - Les intermédiaires de commerce

There are regulations for the business intermediary (Art. 137ff.) Who acts for the account of another person, especially for the commission agent (Art. 160ff.), Brokers (Art. 176ff.) And commercial agents (Art. 184ff.) to conclude a commercial purchase agreement with a third party.

Book 5 - La vente commerciale

Art. 202ff. regulate the mutual commercial purchase. These sales law regulations in the fifth book of the AUDCG are based on the UN Sales Convention (CISG) and the French Civil Code . Partly they are word for word. These rules are binding in domestic trade, even if national laws stipulate otherwise, and can therefore not be ruled out entirely. (Art. 10 Traité). Art. 205 orders for non regulated in AUDCG questions the validity of the "Droit commun" of domestic law or of the IPR to. In the event of a breach of contractual obligations, the AUDCG contains a central norm in Art. 248 (“Un manquement au contrat de vente ... essentiel”) which deviates in the wording from Art. 25 CISG (“contravention au contrat ... essentielle”). An infringement is ruled out if the consequences are due to force majeure or the action of a third party (causé par le fait d'un tiers ou la survenance d'un événement de force majeure (CISG: foreseeable "pas prévu")). The same formulation can be found in Art. 267 and Art. 268 stipulates that the act of a commissioned third party does not exclude liability. The design of the notice period in Art. 228, 229 AUDCG is surprising: According to Art. 229 AUDCG, any legal remedy is excluded after one year. The exclusion period of Art. 39 Para. 2 CISG was attacked so vigorously by the developing countries in Vienna in 1980 that Art. 44 CISG was included, according to which after the expiry of the notice period in Art. 39 Para. 1 CISG there is no loss of legal remedy if the buyer has a "reasonable excuse". In addition to the remedies of the UN Sales Convention, Art. 231 Para. 1 AUDCG stipulates a seller's liability for “defaut caché”, hidden defects, which is based on Art. 1641 of the French Civil Code. Art. 231 (2) AUDCG stipulates that liability not only applies in the relationship between seller and buyer, but also in the case of resale with every additional buyer. For the cancellation of a contract, the AUDCG requires a judicial structure declaration. The buyer's right of reduction (Art. 260), partial non-fulfillment (Art. 261) and premature delivery and over-delivery (Art. 262) is contrary to the system in the section "Seller's legal remedies" (Art. 256-262). Art. 264 AUDCG corresponds to Art. 74 CISG with the exception of the “contemplation rule”, which defines the foreseeability as the limit of liability in the event of damage.

Corporate law

Acte uniforme relatif au droit des sociétés commerciales et du groupement d'intérêt économique (AUSC or AUSCGIE) is the uniform act on company law . Traders (natural and legal persons) have been subject to the rules of this Uniform Act since January 1st, 1998 (Art. 920). The act was accepted on April 17, 1997 and published in the OHADA official journal on October 1 (JO OHADA n ° 2 du 1 er octobre 1997). Part 1 deals with company law in a general part, i.e. in a law that applies to all forms of company. Part 2 deals with the individual types of company . The third part contains penal provisions.

Collateral law

Acte uniforme portant organization des sûretés (AUS) is the uniform act on security law . The rules of this Uniform Act have been in force since January 1, 1998 (Art. 151). The act was accepted on April 17, 1997 and was published in the official OHADA journal on October 1 (JO OHADA n ° 3 du 1er octobre 1997). It includes personal, furniture and real estate securities.

Debt Collection and Enforcement Act

Acte uniforme portant organization des procédures simplifiées de recouvrement et des voies d'exécution (AUPVE or AUPSRVE) is the uniform act on the dunning procedure and the law of enforcement . The rules of this Unified Act have been in effect since July 10, 1998. The act was adopted on April 10, 1998 and was published in the official journal of OHADA on July 1 (JO OHADA n ° 6 du 1er juillet 1998).

Bankruptcy law

Acte uniforme portant organization des procédures collectives d'apurement du passif (AUPC or AUPCAP) is the uniform act on insolvency law . The rules of this unified act have been in effect since January 1st, 1999. The act was adopted on April 10th, 1998 and was published in the official journal of OHADA on July 1st (JO OHADA n ° 7 du 1st July 1998).

Arbitration law

This unified act, the Acte uniforme relatif au droit de l'arbitrage (AUA) represents the common arbitration law for the 16 member states. The rules of this unified act have been in force since June 11, 1999. The act was adopted on March 11, 1999 and was published in the official journal of OHADA on May 1st (JO OHADA n ° 8 du 15 may 1999, p.2).

Accounting law

This unified act, the Acte uniforme portant organization et harmonization des comptabilités des entreprises (AUCE) defines the accounting principles and standards for companies and creates an OHADA-specific accounting system. The rules of this uniform act have been in effect since January 1, 2001 for consolidated financial statements and since January 1, 2002 for consolidated financial statements. The act was accepted on March 23, 2000 and was published in the official journal of OHADA on November 20 (JO OHADA n ° 10 du 20 novembre 2000).

Transport law

Acte uniforme relatif aux contrats de transport de marchandises par route (AURCMR) is the uniform act on transport law . The rules of this uniform act have been in effect since January 1, 2004 (Art. 31). The act was approved on March 22, 2003.

Labor and contract law

Two preliminary studies were published in 2006.

Date of accession of the member states of OHADA

Country ratification Custody Come into effect
Central African RepublicCentral African Republic Central African Republic January 13, 1995 January 13, 1995 September 18, 1995
MaliMali Mali February 7, 1995 March 23, 1995 September 18, 1995
ComorosComoros Comoros February 20, 1995 April 10, 1995 September 18, 1995
Burkina FasoBurkina Faso Burkina Faso March 6, 1995 April 16, 1995 September 18, 1995
BeninBenin Benin March 8, 1995 March 10, 1995 September 18, 1995
NigerNiger Niger June 5, 1995 June 18, 1995 September 18, 1995
SenegalSenegal Senegal June 14, 1995 June 14, 1995 September 18, 1995
TogoTogo Togo October 27, 1995 November 20, 1995 January 19, 1996
Ivory CoastIvory Coast Ivory Coast September 29, 1995 December 13, 1995 February 11, 1996
Guinea-BissauGuinea-Bissau Guinea-Bissau January 15, 1994 October 26, 1995 February 24, 1996
ChadChad Chad April 13, 1996 May 3, 1996 2nd July 1996
CameroonCameroon Cameroon October 20, 1995 4th October 1996 3rd December 1996
GabonGabon Gabon February 2, 1998 February 4, 1998 April 5, 1998
Congo RepublicRepublic of the Congo Republic of the Congo May 28, 1997 May 18, 1999 June 17, 1999
Equatorial GuineaEquatorial Guinea Equatorial Guinea April 16, 1999 June 15, 1999 August 14, 1999
Guinea-aGuinea Guinea May 5, 2000 September 22, 2000 November 21, 2000
Congo Democratic RepublicDemocratic Republic of Congo Democratic Republic of Congo June 27, 2012 July 13, 2012 September 13, 2012

Web links

French:

German:

Contract and court rules

Actes uniformes

Individual evidence

  1. ↑ Martin Kirsch: Historique de I 'organization pour I'harmonisation de droit des affaires en Afrique (OHADA), Revue Penant: revue trimestrielle de droit africain, Volume 108, No. 827 (1998), pp. 129-135 ( PDF ( Memento from December 3, 2013 in the Internet Archive )).
  2. ↑ Banque de France The franc zone ( PDF; 285 kB), Banque de France, Communication Directorate fact sheet n ° 127, April 2002, updated July 2010.
  3. ↑ "Les Afriques:" L'Union internationale des avocats se penchent sur l'OHADA "from February 14 2010 online , accessed on 15 December of 2010.
  4. ↑ Cheikh Yérim Seck: " Kéba Mbaye : parcours et combats d'un grand juge", Paris 2009, p. 164. ( ISBN 978-2-8111-0258-6 )
  5. ^ Ministère des Affaires étrangères : Webpage, France-Diplomatie> Topics> Government Action> Rule of Law and Fundamental Freedoms , from May 27, 2008; Retrieved December 14, 2010.
  6. ↑ Ulrich G. Schroeter: The uniform sales law of the African OHADA states compared to the UN sales law, online , accessed on December 15, 2010.
  7. ↑ see also: Daniel Gouadain / El Bachir Wade: Comptabilité générale systeme comptable de l'OHADA, Paris 2002 ( PDF ).