Quo vadis, OHADA Private International Law?

Abstract

Twenty-eight years after the creation of the Organization for the Harmonization of Business Law in Africa (OHADA), private international law remains a “Cinderella subject” in western and central Africa. Indeed, there are no coherent sets of rules regarding the law applicable to contractual obligations, international jurisdiction, as well as the recognition and enforcement of foreign judgments under OHADA law. This article contends that the main reason behind the lesser importance given to private international law in the OHADA region can be found in OHADA’s unification technique itself: OHADA unifies (and does not merely harmonize) business law. Its Uniform Acts are directly applicable and overriding in all the Member States; therefore, one could (erroneously) think that courts would never have to grapple with difficult questions as to which Member State’s law would apply to a dispute falling within the scope of a Uniform Act, as the laws of all the Member States would yield the same results. This article demonstrates that the Uniform Acts are incomplete either because they contain gaps or because they sometimes refer to the national legislations of the Member States. Thus, the unification of the substantive rules does not eliminate the need for the existence and the unification of conflict-of-laws rules. Moreover, this article provides a tour d’horizon of the existing seldom private international law rules under OHADA law. Additionally, it suggests new avenues for the development of a future OHADA legislation on the law applicable to contractual obligations, international jurisdiction, as well as the recognition and enforcement of foreign judgments.