Revue Africaine des Sciences Juridiques n° 1/2014

Publié par

Ce numéro s'articule autour de deux grandes parties : Droit privé : - OHADA and investment trends in Africa - contribution de l'OHADA à la promotion d'une économie sociale - L'exclusion d'un associé dans les sociétés commerciales en droit OHADA, etc. Droit public : - Réflexion sur le cadre harmonisé des finances publiques dans l'espace UEMOA - Transfert et répartition de compétences en droit de la décentralisation au Cameroun - Distinction entre faute de gestion et détournement des deniers publics.
Publié le : lundi 15 septembre 2014
Lecture(s) : 126
Tags :
EAN13 : 9782336356068
Nombre de pages : 300
Voir plus Voir moins
Cette publication est uniquement disponible à l'achat

REVUE AFRICAINE DES SCIENCES JURIDIQUES
AFRICAN JOURNAL OF LAW
SOMMAIRE
I. DROIT PRIVÉ ......................................................... 7
OHADA and investment trends in Africa
ATANGCHO N. AKONUMBO ...................................................................9
La contribution de l’Ohada à la promotion d’une économie sociale
à travers l’acte uniforme relatif au droit des sociétés coopératives
Marie Duvale KODJO GNINTEDEM .....................................................61
La protection du droit à un procès dans un délai raisonnable
dans l’espace OHADA
Ibrahim NDAM .........................................................................................87
L’exclusion d’un associé dans les sociétés commerciales en droit OHADA
Joséphine DJUIKOUO .............................................................................139
II. DROIT PUBLIC ................................................. 171
Réfl exion sur le cadre harmonisé des fi nances publiques dans l’espace
UEMOA
Nicaise MEDE .........................................................................................173
Transfert et répartition de compétences en droit de la décentralisation
au Cameroun
Joseph Magloire NGANG .........................................................................211
La distinction entre la faute de gestion et le détournement de deniers
publics en droit camerounais
AKONO ONGBA SEDENA ....................................................................249 N° 1/2014
UNE PUBLICATION DE L’UNIVERSITÉ DE YAOUNDÉ II
(Faculté des Sciences Juridiques et Politiques)
N° 1
2014
ISBN : 978-2-343-04374-6
31 RASJ
REVUE AFRICAINE DES SCIENCES JURIDIQUES UNIVERSITÉ
DE YAOUNDÉ II
AFRICAN JOURNAL OF LAW
REVUE AFRICAINE DES SCIENCES JURIDIQUES
AFRICAN JOURNAL OF LAW











NN° 1/20114




UNE PUBLICATION DE L’UNIVERSITÉ DE YAOUNDÉ II

Faculté des Sciences Juridiques et Politiques

RASJ
UNIVERSITE DE YAOUNDE II
UNIVERSITY OF YAOUNDF II
FACULTE DES SCIENCES JURIDIQUES FT POLITIQUES
FACULTY OF LAWS AND POLITICAL SCIENCES

ORGANISATION DE LA REVUE AFRICAINE DE SCIENCES
JURIDIQUES

COMITÉ DIRECTEUR / MANAGEMENT COMMITTEE
Directeur de Publication / Director of Publication
Pr ONDOA Magloire
Doyen, FSJP, Université de Yaoundé II -
Rédacteur en Chef /Editor in Chief
Pr ATANGCHO NJI AKONUMBO
Vice-Doyen, Recherche et Coopération, FSJP, Université de Yaoundé II
Rédacteurs Adjoints-Coordonnateurs des Pôles de spécialité /Assistant Editors-Rubric
Coordinators
Pôle « Droit Privé Francophone » / French Private Law Rubric
Pr ATANGANA-MALONGUE Thérèse, Université de Yaoundé II
Pôle « Common Law » / Common Law Rubric
Pr CHEKA Cosmas NGASAH, Université de Yaoundé II
Pôle Droit Public / Public Law Rubric
Pr PEKASSA NDAM Gérard Martin,
Vice-Doyen, Programmation et suivi des affaires académiques, FSJP, Université de
Yaoundé II
Conseillers / Advisers
Pr GALEGA SAMGENA, Université de Yaoundé II
Dr (HDR) KUATE TAMEGHE Sylvain Sorel, Université de Yaoundé II COMITE SCIENTIFIQUE / EDITORIAL BOARD

Pr ABANE ENGOLO, Patrick Edgard, Université de Yaoundé II ; Pr
ATANGANA AMOUGOU Jean-Louis, Université de Ngaoundéré ; Pr NA-MALONGUE Thérèse, Université de Yaoundé II ; Pr.
ATANGCHO NJI AKONUMBO, Université de Yaoundé II ; Pr BOKALLI
Victor-Emmanuel, Université de Yaoundé II ; Pr BOUKONGOU Jean-Didier,
Université Catholique d’Afrique Centrale, Yaoundé ; Pr. CHEKA Cosmas
NGASAH, Université de Yaoundé II ; Pr DANPULLO Rabiatu, Université de
Yaoundé II ; Pr DASCHACO John TAMBUTOH, Université de Bamenda ; Pr
DONFACK SOKENG Léopold, Université de Douala ; Pr FOMETEU Joseph,
Université de Ngaoundéré ; Pr GUIMDO DONGMO Bernard-Raymond,
Université de Yaoundé II ; Pr JIOGUE Grégoire, Université de Yaoundé II ; Pr.
KALIEU ELONGO Yvette, Université de Dschang ; Pr KENFACK Pierre
Étienne, Université de Yaoundé II ; Pr KENMOGNE SIMO Alain, Université
de Yaoundé II ; Pr KOM Jacqueline, Université de Yaoundé II ; Pr MEDE
ZINSOU Nicaise, Université d’Abomey-Calavi ; Pr MEVOUNGOU NSANA
Roger, Université de Yaoundé II ; Pr METOU Brusil Miranda, Université de
Yaoundé II ; Pr MINKOA SHE Adolphe, Université de Yaoundé II ; Pr. MODI
KOKO Henri Désiré, Université de Dschang ; Pr MOUTHIEU Monique Aimée,
Université de Yaoundé II ; Pr NCHIMI MEBU Jeanne-Claire, Université de
Yaoundé II ; Pr NEMEDEU Robert, Université de Yaoundé II ; Pr NGANDO
Blaise Alfred, Université de Yaoundé II ; Pr NGUELE ABADA Marcelin,
Université de Yaoundé II ; Pr NTONO TSIMI Germain, Université de
Yaoundé II ; Pr OLINGA Alain Didier, Université de Yaoundé II ; Pr ONDOA
Magloire, Université de Yaoundé II ; Pr PEKASSA NDAM Gérard Martin,
Université de Yaoundé II ; Pr SIMO TUMNDE Martha, Université de Buea ;
Pr SPENER YAWAGA, Université de Ngaoundéré ; Pr TCHAKOUA Jean-
Marie, Université de Yaoundé II ; Pr TCHEUWA Jean-Claude, Université de
Yaoundé II ; Pr VILJOEN Frans, Université de Pretoria
COMITÉ D’HONNEUR / ADVISORY BOARD
Pr ANOUKAHA François ; Pr BIPOUN WOUM Joseph-Marie, Doyen
honoraire ; Pr COSSI SOSSA Dorothée, Secrétaire permanent de l’OHADA ; Pr
KAMTO Maurice ; Doyen honoraire ; Pr MOUELLE KOMBI Narcisse, Doyen
honoraire ; Pr DOUMBE-BILLE Stéphane, Université Jean Moulin, Lyon III ;
Pr NGWAFOR Ephraïm NDEH, Recteur honoraire ; Pr ONDOUA Alain,
Directeur du Bureau Afrique centrale et Grands Lacs, AUF ; Pr OUMAROU
BOUBA, Recteur de l’Université de Yaoundé II ; Pr OWONA Joseph,
Chancelier honoraire ; Pr POUGOUE Paul-Gérard, Université de Yaoundé II ;
Me AKERE T. MUNA, Bâtonnier honoraire ; Dr ONANA ETOUNDI,
Magistrat, Directeur général de l’ERSUMA
SECRETARIAT TECHNIQUE / TECHNICAL TEAM
Dr BATOUAN BOUYOM Joseph Alain, Université de Yaoundé II
Dr BETI ETOA Christophe, Université de Yaoundé II
Dr DIFFO TCHUINKAM Justine, Université de Yaoundé II
Dr EGBE Samuel EGBE, Université de Yaoundé II
Dr MOUBITANG Emmanuel, Université de Yaoundé II






© L’Harmattan, 2014
5-7, rue de l’Ecole-Polytechnique, 75005 Paris

http://www.harmattan.fr
diffusion.harmattan@wanadoo.fr
harmattan1@wanadoo.fr

ISBN : 978-2-343-04374-6
EAN : 9782343043746 SOMMAIRE


I. DROIT PRIVÉ .................................................................................. 7
OHADA and investment trends in Africa
ATANGCHO N. AKONUMBO .............................................................. 9
La contribution de l’Ohada à la promotion d’une économie sociale
à travers l’acte uniforme relatif au droit des sociétés coopératives
Marie Duvale KODJO GNINTEDEM .................................................. 61
La protection du droit à un procès dans un délai raisonnable dans
l’espace OHADA
Ibrahim NDAM ....................................................................................... 87
L’exclusion d’un associé dans les sociétés commerciales en droit
OHADA
Joséphine DJUIKOUO ........................................................................... 139
II. DROIT PUBLIC ......................................................................... 171
Réflexion sur le cadre harmonisé des finances publiques dans l’espace
UEMOA
Nicaise MEDE ........................................................................................ 173
Transfert et répartition de compétences en droit de la décentralisation
au Cameroun
Joseph Magloire NGANG ....................................................................... 211
La distinction entre la faute de gestion et le détournement de deniers
publics en droit camerounais
AKONO ONGBA SEDENA ................................................................. 249







I.


DROIT PRIVÉ


OHADA AND INVESTMENT TRENDS IN AFRICA

1ATANGCHO N. AKONUMBO

Abstract
The OHADA reform initiated by some Francophone African
countries in the early 90s was saluted as a timely response to Africa’s
overall ailing business climate characterised by the continent’s dismal
participation in world trade and investment. This paper questions the
potential of the reform to guarantee the influx of foreign investments in
the continent, against the backdrop of some lingering concerns. The
paper argues that empirical evidence from both quantitative and
qualitative data tends to show that the reform has not been able to draw
significant flows of investments to the continent, at least to the
geographical zone it presently covers. However, the reform is capable of
delivering in this respect in the long run from the standpoint of its scope
and the substance of its laws, particularly, the Uniform Act on
Commercial Companies. This Act offers multifarious friendly corporate
law mechanics that incentivise and influence investment placement
decisions. In any case, there is urgency in addressing concerns generated
by the reform, including, but not limited to, the oft cited and challenged
substantive parochialism of its laws and some other harmonisation
challenges. In fact, these concerns seem to, or have actually comforted
the reticence of some common-law-driven sceptics about the efficiency of
the reform, and perhaps downplayed its prowess in boosting investments
on the continent.

1 Associate Professor of Laws (Maitre de Conférences des Universités), University of Yaounde II –
Cameroon.
9 Résumé
La réforme OHADA initiée par certains pays africains francophones au
début des années 90, a été saluée comme une réponse opportune à l’Afrique
qui souffre en général d’un climat des affaires troublé, caractérisé par la
participation lugubre du continent dans le flux de commerce et
investissements mondiaux. Cette publication questionne la possibilité pour la
réforme de garantir l'afflux des investissements étrangers dans le continent,
contre la toile de fond de quelques inquiétudes. L’analyse argumente que
l'évidence empirique de données quantitatives et qualitatives a tendance à
montrer que la réforme n'a pas été en mesure d'attirer des flux considérables
d'investissements sur le continent, du moins pour ce qui est de la zone
géographique qu'elle couvre pour l'instant. Cependant, la réforme pourrait
jouer ce rôle à long terme, du point compte tenu du domaine et de la
substance de ses normes, notamment l'Acte Uniforme sur les sociétés
commerciales et des GIE. Cet Acte Uniforme offre des mécanismes juridiques
variés et adaptés qui motivent et influencent les décisions de placement des
investissements. De toute façon, il y a urgence à se focaliser sur les inquiétudes
résultant de la réforme, y compris entre autres, les limites de fond des Actes
Uniformes, ainsi quelques défis d'harmonisation. En fait, ces inquiétudes
semblent ou ont effectivement consolidé la réticence de certaines sceptiques
d’obédience Common Law sur l’efficience de la réforme, et peut-être, même
minimisé sa prouesse de booster les investissements sur le continent.
1. Background Considerations
“OHADA is a legal tool thought out and designed by and for
Africa to serve the purpose of regional integration and economic
growth on the Continent.”
(Keba M’baye, first President of OHADA)
Since the close of the 1980s, private investments, particularly foreign
direct investments (FDI), have become a key instrument for economic
integration among developing countries and their integration into the
10 2global economy . As such, African countries have been sparing no efforts
in creating viable incentives to encourage foreign trade and investment,
generally, by instituting far reaching reforms. The reconstruction of
national legal and regulatory regimes has been the main axis of reform,
3alongside economic and political considerations . However, individual
efforts at national levels have often proved dilatory and unwary due to
4unfriendly conditions in the general investment climate. The solution
has been seen in the institution of a more conducive legal and regulatory
framework beyond national efforts - legal integration through the
harmonisation of business laws. This explains Barrister Akere Muna’s
remark that, ‘the harmonization of business laws is certainly one of the
5catalysts of investment’. Thus, although the birth of OHADA is
commonly ascribed to the awareness and concerns by some African

2 See generally, United Nations Conference for Trade and Development [UNCTAD, Foreign
Investment in Africa. UNCTAD/DTCI/19 Current Studies, Series A, N° 28, New York and
Geneva, United Nations, 1995, pp. 21 & 22.
3 Akonumbo, A., “Foreign Direct Investments and Legal Policy Options in Cameroon”, Doctorat
d’Etat Thesis in Law (Unpublished), Faculty of Laws and Political Science, University of Yaounde
II, 2008, p. 4.
4 The notion of investment climate should be understood as referring to present and future
considerations, involving positive and negative government action. It depends on the following
determinants : government’s interventionist tendencies, entry requirements and screening
policies, investment opportunities (such as natural resources), physical infrastructure, levels of
skills and general technological capabilities, growth rate, pace of introducing market and private
sector oriented reforms undertaken within Structural Adjustment Programmes (where
applicable), levels of State indebtedness, fiscal (tax rates and incentives) and financial policies,
market access, capital repatriation, intellectual property rights, trade policies, government
regulation, corrupt practices, and, political stability. See UNCTAD. (1995). op. cit., pp. 37-39.
See also Akonumbo (2008) op cit., footnote 66 at p. 48. Political stability is of great importance
and precisely refers to the political risk factor which comprises : inconsistent, unclear and/or
erratic regulations ; risk of nationalization or expropriation ; shortcomings in legal and regulatory
systems ; political instability ; environmental risks (e.g., contingent liabilities for previous
environmental damage) ; high rates of criminality ; and civil disturbances and violence. See,
European Round Table of Industrialists (ERT), “Improved Investment Conditions : Third
Survey on Improvements in Conditions for Investment in the Developing World. Brussels”,
2000, in Nunnenkamp, P. Determinants of FDI in Developing Countries : Has Globalization
Changed the Rules of the Game ? Kiel Working Paper, No. 1122, Kiel : Institute for World
Economics, Annex 1, 2002, p. 41. See also Akonumbo supra, footnote 507 at p. 284.
5 Muna, T., “Is OHADA Common Law Friendly ?” Le Bulletin de Bâtonnier (numéro spécial),
2002, p. 54.
11 6countries over the challenges of globalising markets , securing increased
foreign investment flows mainly in the form of FDI is a major reason.
Indeed, FDIS are engines of growth. The benefits they bring along have
been summarised by Ibi Ajayi in the following words :
‘Foreign direct investment contributes to growth in a
substantial manner because it is more stable than other forms of
capital flows. The benefits of FDI include serving as a source of
capital, generating employment, facilitating access to foreign
markets, and generating both technological and efficiency spill
overs to local firms. It is expected that by providing access to
foreign markets, transferring technology and generally building
capacity in the host country firms, FDI will inevitably improve
the integration of the host country into the global economy and
7foster growth’ .
However, the history of investment trends around the globe holds
that Africa’s share of the total value of FDI has remained relatively low
compared to other regions, although recent statistics seem to suggest that
8reform efforts may have started paying off .
Some of the reasons why investment flows to the African continent
have remained low are that, among the developing country regions,
Africa has the largest concentration of least developed countries, most of
which suffer from a number of factors that discourage investment. These

6 Cousin, B & A-M Cartron “OHADA : A Common Legal System Providing a Reliable Legal
And Judicial Environment In Africa For International Investors” p. 1. Online at :
<http ://www.cerclehorizon.com/nosarticles/judicial-environment-in-africa.pdf> (accessed on 24
March 2009).
7 Ajayi, S. I [Ed].,Foreign Direct Investment in Sub-Saharan Africa : Origins, Targets, Impact and
Potential, Nairobi, African Economic Research Consortium, 2006, p. 12.
8 It is true also that this has not always been the case. For example, developing countries’ share of
FDI inflows in the 1990s rose to an unprecedented level of 40 percent of the global trend. But
developing countries of sub Saharan Africa did not partake in this jamboree as much as the
African continent as a whole despite efforts in the region to attract investment flows through the
liberalisation of regulatory frameworks. See UNCTAD (1995) 292 cit., p. 21. One of the strong
factors which accounted for this scenario was the political risk, characterised by political
instability in most of these countries.
12 factors include : poor legal and regulatory frameworks and
implementation strategies ; high levels of state indebtedness ; slow
institution of democratic and economic reforms ; small domestic
markets ; corrupt practices ; poor infrastructure ; unskilled labour ; and,
above all, the absence of what senior economists of the Jeune Afrique
Economie group, Frédéric Dorce, Jean Baptiste Placca and Thierry
Vincent rightly refer to as « l'absence d'une culture d'entreprise Africaine »
9(lack of an African business culture) .
The OHADA reform was therefore timely ; sprouting at a time when
many African countries were still in search of a more facilitative legal
environment to encourage businesses generally and to secure foreign
private investments in particular. The question which this paper proposes
to answer is whether the OHADA reform in its present stature is capable
generating a significant influx of investments into Africa or, at least, to
the zone it covers. This paper works on the premise that the OHADA
reform is capable of achieving this end through the impressive scope and
substance of its laws, notably, the Uniform Act on Commercial
Companies, although the harmonisation process itself, which is the knob
of the reform, is fraught with some incongruities. However, while this
reform may be relatively young to be assessed in terms of guaranteeing
significant qualitative investments flows, harmonisation, as the knob of
the reform, cannot be immediately responsible for high or low levels of
investments flows. The role of OHADA reform towards attracting
investments in general, and foreign investments in particular, has already
10been discussed elsewhere and this paper certainly seeks to complement
those efforts.
2. Import of OHADA Regionalism for Investments
The OHADA kind of regionalism through the harmonisation of laws
is particularly important for investments generally, when viewed in the

9 Dorce, F, J-B Placca and T Vincent, « Une guerre ouverte : l’affaire SITABAC », Jeune Afrique
Economie, n° 167, 1993, p. 95.
10 See for example, Dickerson, C “Perspectives on the Future”, in Dickerson, C [Ed], Unified
Business Laws for Africa : Common Law Perspectives on OHADA, London, GMB Publishing Ltd,
2009, pp.93/5.
13 context of today's global and integrated economy with the implantation
of regional trading blocs around the world such as the European Union
(EU), North Atlantic Free Trade Area (NAFTA), Southern Common
Market (MERCOSUR), Association of Southeast Asian Nations
(ASEAN), Economic Community of Central African States (CEMAC),
Economic Community of West African States (ECOWAS) and Southern
11African Development Community (SADC) . Certainly, the OHADA
regionalism is unique in its own right in that unlike the other regional
blocs just mentioned which are rather more or less free trade areas, none
has proceeded beyond mere integration towards harmonisation of
12business laws between member states . It should be remarked that in as
much as ASEAN, NAFTA and MERCOSUR are regional economic
blocs that can spur investment, the integration they offer still remains
strongly paralleled by national interests as individual member states
wholly legislate on different aspects of business law in the absence of
community legislation. Yet, this does not seem to handicap these regions
in terms of influx of investments as compared to the OHADA region.
The existence or the lack of ‘business culture’ or ‘spirit of enterprise’
could be respectively invoked in each case to explain this contradiction.
That notwithstanding, from a purely logical and theoretical perspective,
the very driving force of the OHADA, for sure, is its harmonisation
prowess though criticised for its substantive parochialism.
3. Investment Prowess of the OHADA Reform
The OAHADA reform institutes a common legal environment,
eliminates the problem of conflict of laws, strengthens legal security and
judicial cooperation, brings the peoples of the zone together, and enables

11 Professors Pougoué & Elongo hold that the driving philosophy and pace of the OHADA
reform offers, differs with that of these regions and is poised to conflict with those of Africa,
especially CEMAC and ECOWAS. See Pougoué P-G & Y Elongo, footnote 12 infra.
12 Touray, S, Wickersham & L Taft, “OHADA Treaty : Recent Developments Will Spur African
Investments and Project Financings”, 1999. Online at :
<http ://library.findlaw.com/1999/Jul/1/130357.html> (accessed on 05 April 2009).
14 13political cooperation between them .One ambition therefore clearly
stands out as its heartbeat - the quest for both legal and judicial security to
promote trade and investment.
14Legal security is ensured by the different Uniform Acts (UAs) which
lay down common legal rules applicable in all member states, while
judicial security is guaranteed by the creation of a key institution, the
Common Court of Justice and Arbitration (CCJA), in charge of
interpreting and systematising the application of the OHADA treaty
15provisions and UAs in member states through the reasoned opinions of
the Court. The OHADA system also offers an alternative commercial
16dispute settlement mechanism – institutional and ad hoc arbitration .
Forneris opines that ‘one of the most important advantages of the
OHADA reform is that it reduces legal uncertainty, which is one of the
17components of legal insecurity’ . As a matter of fact, legal insecurity
including amorphous predictability of rules have proven to be
significantly inimical to foreign investments. Legal uncertainty is a vice
that has plagued national African legal systems for years. The OHADA
system of law has been saluted for its clarity, comprehensiveness and
18predictability . For one, if any law seeks to achieve its desired goal, it
should be predictable in terms of prescription and sanction. In addition
to its sophistication and appropriateness (which determine the
effectiveness of laws generally), the clarity and uniformity of OHADA

13 Pougoué, P-G. Présentation Général et Procédure en OHADA. Yaoundé, Presses Universitaires
d’Afrique (PUA), 1998, p. 5. See also, Pougoué, P-G & Y Elongo, Introduction Critique à
l’OHADA, Yaoundé, PUA, 2008, pp. 21-28
14 Nine UAs are currently in force : General commercial law ; law on commercial companies and
economic interest groups ; securities law ; arbitration law ; law on simplified recovery procedures
and enforcement measures ; law on collective procedures for debt settlement ; accountancy law ;
carriage of goods by road law and law on cooperative companies.
15 See Issa-Sayegh, “The Contribution of OHADA to Legal Guarantees and Conflict
Resolutions” (undated treatise)p. 1.
16 The CCJA operates as a supreme court for all the decisions handed down by the national
Courts of Appeal and relating to OHADA texts so as to ensure uniformity of interpretation ;
places the national courts under the direct control of the CCJA ; and reduces the backlogs of the
national courts.
17 Forneris, X. “Harmonizing Commercial Law in Africa : the OHADA”. Law in its Social
Setting - Governance, Development and Globalization, University of Warwick, p. 7.
18 Ibid.
15 19laws have been identified as ‘OHADA’s hallmarks’ . Uniformity, it is
contended, is ‘central to reducing transaction costs for all investments
and trades, and in increasing the region’s ability to negotiate with foreign
20investors’ . Indeed, clarity, certainty and predictability should be the
purpose of any law that seeks to meet the standards of just law.
The finality of the objective of OHADA to promote investments is
enshrined in paragraph five of the preamble to the treaty establishing
OHADA. It provides :
‘…Conscious of the fact that it is essential that this law be
applied with diligence in such conditions so as to guarantee
legal stability of economic activities and favour expansion of the
latter and encourages investments….’
Commenting on the specific nature of this objective, Forneris says :
‘Unlike other regional arrangements in Africa, OHADA does
not seek to harmonise the economic, trade or monetary policies
of its member states. Its objective is simple : to harmonise their
business laws such that they have a single, modern legal
framework for their activities. The rationale of this is to
improve legal security, which in turn, would help to promote
21trade and investment’ .
3.1 Incentive scope of OHADA Laws
Article 2 of the OHADA treaty defines the scope of the UAs and
further empowers the Council of Ministers to subsequently add up other
areas of business law it deems necessary. The scopes of the UAs that are
currently in force cover areas that facilitate the activities of investors and
businesspersons generally. The UAs cover both substantive and the
procedural law. So far there are nine UAs in force covering the following
areas : law on commercial companies and economic interest groups,
general commercial law, arbitration law, securities law, accounting law,

19 Dickerson, “Perspectives ...” in Dickerson, [Ed) Unified Business Law...op. cit., pp. 99 & 109.
20 Ibid., p. 108.
21 Forneris op. cit., p. 2.
16 simplified recovery procedures and enforcement measures law, collective
procedures for debt recovery (bankruptcy law), carriage of goods by road,
and company cooperatives law. Meanwhile, the adoption of the UAs
relating to contract law, employment law, intellectual property law,
telecommunications law, competition law, banking law, law of evidence,
22law on civil companies and others are in the pipeline . The UAs in force
on adjectival law business law issues are the collective procedures for debt
recovery and simplified recovery procedures and enforcement measures.
It should be remarked that OHADA laws are directly applicable in
member states on the strength of article 10 of the OHADA treaty. This
article states :
‘Uniform Acts are directly applicable and overriding in
Contracting States notwithstanding any conflict they may give
rise to in respect of previous or subsequent enactment of
23municipal laws’ .
This means that the UAs, once adopted by the Council of Ministers,
have direct effect in member states and override any contrary previous in
or subsequent national legislation in the relevant area of business law.
The upshot is that OHADA laws are supra-legal since they have
prominence over national legislation and, of course, this is a cardinal
24principle in treaty law .
Of the UAs in force discussed below, the first three may be of
particular interest to investors, but only one shall receive special attention
- UACCEIG.

22 The OHADA council of ministers held in March 2001 in the capital of the Central African
Republic – Bangui, retained these areas. The law on cooperatives was in this group but is now the
ninth UA
23 The French version reads : « Les actes uniformes sont directement applicables dans les Etats Parties,
nonobstant toute disposition contraire de droit interne, antérieure ou postérieure».
24 o Mure, C., « Harmonisation du droit des affaires en Afrique », Indices, n 016 du Décembre
1999, p. 11.
17 3.2 Summary content of the incentive scope of relevant UAs
- The UA on General Commercial Law (UAGCL)
It may be surprising at first site why this discussion on OHADA
general commercial law in this paper, it being considered that investment
is not trade (though they may go in hand). But this stems from the very
peculiarity of the OHADA reform wherein under the UAGCL, the
notion of trade is considered in a broad sense to include pure investment
issues. Hence, trade under the Act comprises the purchase of movable
and immovable goods in view to reselling them ; banking, stock
exchange, brokerage, insurance and transit transactions, and contracts
between traders for the purposes of their business ; industrial exploitation
of mines, quarries and all deposits of natural resources ; transactions
involving the rental of movable goods ; manufacturing, transport and
telecommunications transactions ; transactions by business
intermediaries ; and acts performed by commercial companies.
Conversely, under the Act, investment tools such as negotiable
instruments (promissory notes, bills of exchange, share warrants) are
considered elements of trade.
The UAGCL is the pivot of business activities generally (including
investments) especially in terms of some procedural issues in the setting
up of businesses. For example, the commercial registry system (Trade
25and Personal Property Register) involves business registration
procedures and conditions for business entities including commercial
companies (establishment of new companies, change of company
name/status, alteration/modification of articles etc.). Furthermore, the
fact that OHADA law deals with commercial companies is self-indicative
that the UAGCL governs ascertainment of the commercial status of a
company, since the OHADA UA on companies specifically deals with
commercial companies. Generally, the Act addresses, inter alia, the status
of commercial operators, commercial leases, going concerns (“fonds de
commerce”), commercial intermediaries, commercial sale agreements,
which may have a bearing on investments. A key example here is the

25 Registre de commerce et de crédit mobilier (RCCM)
18 status of commercial operators. Companies involved in the industrial
exploitation of mines are considered commercial operators under the Act.
Trading status triggers legal consequences, particularly with respect to
accounting and registration. The novelty of the commercial registry
under OHADA include the fact that it : provides security to investors at
the national level ; allows investors to obtain updated information with
respect to commercial operators, including shareholders, directors, and
the security interests taken out against companies ; is available at the
national level, and information is transmitted to the Regional Registry ;
is intended to be fully computerised on same system in all member states.
- UA Commercial Companies and Economic Interest Groups
(UACCEIG)
The UACCEIG is of direct interest to investments. Specific pro-
investment aspects of this Act will be dealt with in greater detail under
subsequent sections but suffice to state here grosso modo that it addresses
issues such as the creation, management, audit, restructuring and
winding-up of companies. It sets out an impressive coloration of
different types of companies which may be of interest to investors (big
and small), particularly foreign direct investors, notably the first three
below. Some of these so-called companies are purely hybrids of
conventional companies and are closer to common law partnerships (last
two below) :
• Société Anonyme (SA) – Corporation i.e. public limited company
under English law. This form is suitable for huge investments ;
• Société à Responsabilité Limitée (SARL) –private limited liability
company appropriate for smaller investments ;
• Société d’État – State Corporations ;
• Société en Nom Collectif (SNC)
• Société en Commandite Simple (SCS)
26• Société en Particpation (SP) –joint-venture company ; and,

26 The other types of companies under the UA are : the Société en Commandite Simple – Limited
Partnership ; Société en Nom Collectif – General Partnership (Private Unlimited company) ; and
Société de Fait - De Facto Company.
19 • de facto companies
- UA on Arbitration
In investors are keen about dispute settlement issues. They do not
only see in it a tool of protection but a factor that mirrors the degree of
legal security they may likely find in a host state. For this reason, they
highly prefer independent, non-judicial or alternative mechanisms for the
settlement of disputes.
The UA on arbitration introduces a common arbitration law in the
member states and fills gaps in legislation in some OHADA countries. It
provides for both institutional arbitration (under the auspices of the
27CCJA) and ad hoc arbitration where the seat of the arbitral tribunal is
in one of the member states. The UA on Arbitration Law sets out rules in
particular on :
• the arbitration agreement ;
• the constitution of the arbitration tribunal and the arbitral
hearing ;
• the kind of appeal against an award ( action for cancellation,
petition for review, opposition by a third party) ; and,
• the recognition and enforcement of awards.

27 However, some OAHDA member states hitherto had and still have national institutional
arbitration centres - Centre d’Arbitrage, de Médiation et de Conciliation de la Chambre de
Commerce, d’Industrie et d’Agriculture de Dakar (CCIAD) ; Centre d’Arbitrage du Groupement
Inter-patronal du Cameroun, GICAM, and Cour d’Arbitrage de Côte d’Ivoire (CACI). Parties to
disputes can resort to these supplementary centers especially smaller investors who may not have
the means to support the cost of CJJA arbitration. The UA on Arbitration Law governs all private
ad hoc arbitrations by any institution within the OHADA region, if the arbitration clause makes
reference to the Act. (See Pougoué, P-G, J-M Tchakoua & A Féneon, Droit d’Arbitrage dans
l’espace OHADA, Yaoundé, Presses Universitaires d’Afrique, 2000, p. 21. See also, Akonumbo
(2008) op. cit., pp. 482, 483 & 493). This means that the parties to a dispute may choose the UA
on Arbitration rules even if the ad hoc arbitral tribunal is not sitting within the zone. Also, if the
parties insert a clause in the arbitration agreement in a member State in accordance with
institutional rules other than those of the CCJA, the UA on Arbitration would apply in those
provisions that are covered by the said institutional rules. See Martor, B, N Pilkington, D Sellers
and S Thouvenot, Business Law in Africa : OHADA and the Harmonization Process.London,
Eversheds, 2002, p. 256.
20 The OHADA arbitration mechanism significantly enhances the
possibility for parties who have won foreign arbitration proceedings to
enforce awards in the member states. For example, with respect to the
New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards of 10 June 1958 (New York Convention), two scenarios
come into play depending on whether a foreign award (i.e. an award
rendered in a non-member state of OHADA) is sought to be executed on
the territory of an OHADA member state, party or non-party to the
New York Convention. Where execution is sought in a state party to the
Convention, as a matter of principle, it is based on treaty provisions,
whereas, where execution is sought in a non-state party to the
28Convention, it is subjected to the UA on Arbitration Law .
One important aspect of the OHADA system of Arbitration which
has been pointed out by Olivier Fille-Lambie and Jean-Marc Loncle is
that, as it is the case under French law, (which is the source of inspiration
of OHADA laws), it is advantageous in that a State may not use its own
national law to invalidate an arbitration clause in an international
29contract to which it is party . Both authors contend that the validity of
such a clause in the context of an international public service concession
can be raised because this validity is necessary either for the protection of
the investor(s) in the concession, and for the bankability of the project.
- UA on Collective Procedures for the Clearing of Debts (Bankruptcy
Law)
This UA deals with insolvency (bankruptcy) and related situations.
The harmonisation of bankruptcy procedures has emphasised preventive
measures through the establishment of early warning procedures
(“procedures d’alertes”) and of amicable settlement between debtors and

28 See Issa-Sayegh et al, OHADA : Traité et actes uniformes commentés et annotés, Cedex, Juriscope,
2002, p. 133.
29 Olivier Fille-Lambie & Jean-Marc Loncle “Arbitration Applied to Projects Structured on
Public Service Concession : Aspects of French and OHADA Laws”, 2009. Online at :
<http ://www.iblj.com/gb-5-5/afarticle-
1/12003337/arbitration_applied_to_projects_structured_on_public_service_concession__aspects
_of_french_and_ohada_laws.html> (accessed 20 June 2013).
21 creditors. This act also provides for a transnational bankruptcy procedure
related to companies subject to bankruptcy procedure owning assets in
several OHADA member states.
- UA on Simplified Recovery Procedures and Enforcement Measures
This Act sets forth the procedure open to creditors (secured and
unsecured) to recover debts. The Act deals with the simplified debt
recovery and seizure of property proceedings. It institutes quick,
inexpensive and efficient methods of debt recovery such as the injunction
to pay and the restitution procedure, which in the case of disputes related
to sale of goods, enables the seller to recover unpaid goods.
- UA on Securities
The securities Act provides for various guarantees which protect
creditors, including banks. In sum, it deals with the various forms of
guarantees available to creditors in order to reinforce their rights on their
debtors and distinguishes between personal guarantees, securities on
movables, mortgages and leases. An important feature of the law is the
detailed, formal requirements set forth for the valid conclusion of letters
of guarantee and counter guarantee.
The wide scope of the OHADA laws notwithstanding, the worry with
the reform is that some key areas of investment of great interest to
foreign investors are not clearly covered. Thus, it is doubted that since
‘OHADA harmonises general business law but not the material mining
or oil regulation’, for example, companies in this sector ‘may believe that
they are not covered although the reform presents a framework that may
30soothe such businesses as a going concern’ .
At this juncture, the investment incentive perspective of only the
Uniform Act on Commercial Companies and Economic Interest Groups
(UACCEIG) would be specially analysed in greater detail for practical
reasons of space and convenience, since it has a more direct bearing on
investments.

30 Cousin, & Cartron op. cit., p. 1 supra.
22 3.3 The UACCEIG
The incentive pool of the OHADA reform via the UAs is immense
but two broad categories may be singled out in relation to the
31UACCEIG, namely, the protection of key stakeholders and company
mechanics. These may be of interest to investors since the very survival
and continuation of a business concern largely depend thereon.
3.3.1 Protection of businesspersons
3.3.1.1 Business Associates
Professor Anoukaha et al observe that the protection of business
32associates (shareholders) is akin to the protection of savings .This
protection is ensured by control over the company management. The
issue here is that in as much as the management enjoys wide unfettered
powers that enable them to act in the interest of the company, they are
equally subjected to stringent control. This is achieved in a number of
ways. First, the management is required to tally the achievements at the
end of each trading year. Second, the business associates have a viable
and efficient control mechanism at their disposal - the right to be
informed, which is some form of disclosure requirement required of the
management. Thus, information about the running of the company’s
business as a going concern can be gotten either directly by the business
associates themselves or under the auspices of a third party, a competent
and independent company auditor.
It should be noted that the status of business associate confers
collective rights which enhances disclosure and participatory rights :
- the right to be informed which enables a business associate to
know whether the company’s business is being run by the management
efficiently ;
- the right to be part of the company and to participate in company
meetings including, by ricochet, the right to vote.

31 See Anoukaha, F et al., OHADA : Sociétés Commerciales et G.I.E,. Bruxelles, Bruylant, 2002,
pp. 28/29.
32 Ibid., p. 28.
23 The first issue above is of interest here. On the one hand, in
companies with few members, they have, in principle, a direct and
permanent right to be informed, which enables them to request company
accounts for verification at all times from the management. However, in
order to avoid a situation where this right would fetter the smooth
performance of managers’ duties, it is admitted that the articles of
association may provide that they will only give annual accounts at the
end of the trading year. On the other hand, in companies with a greater
number of business associates, a double parallel check system is available.
First, in preparation of the annual general meeting, a business associate
has the right to consult (at the head office) the inventory, the summary
financial statement, auditors’ reports on the company’s accounts and
board of directors’ report. Besides, a business associate can, twice, at any
time during the trading year, put written questions to the managers on
all matters likely to hamper the continuity of the company’s business.
To enhance the above control mechanisms, the UA affords company
auditors and business associates the power to initiate early warning
33procedures in a bid to sit up the management, in the event any
irregularity likely to hamper the company’s business is uncovered. The
34procedure is an innovation in most OHADA member states . Case law
suggests that although the early warning procedure depicts urgency to
address the matter uncovered, it is not in itself a mandatory measure of
urgency ; for, once the auditor has uncovered a situation that could have
initiated the procedure, there is urgency and the president of the
competent court or a judge designated by him (juge de référé – judge
charged with urgent applications) can institute proceedings concerning
the disclosure that could have warranted the procedure, without
35launching the procedure itself . The procedure is certainly an innovation
but the fact that company auditors as well can trigger it is even more

33 Articles 150 et seq. UACCEIG. This procedure may be initiated either by the company auditors
or the business associates themselves.
34 Isaa-Sayegh et al, op. cit., p. 344
35 See Affaire Dame Karamatou IBUKUNLE c/ Sté CODA-Bénin et Quatre Autres (Cotonou, n°
178/99, 30/9/99) cited in Issa-Sayegh et al, OHADA : Traité et actes uniformes commentés et
annotés, Cedex, Juriscope, 2002, p. 345.
24 telling of the fact that in as much as OHADA corporate law offers the
company management wide managerial powers, it carefully sets
safeguards against abuse. The idea that company auditors can introduce
early warning procedures is probably for two reasons : to avert
intentional or negligent indolence on the part of shareholders who may
be unwilling to initiate the procedure perhaps because they were involved
in the dealings that have warranted the procedure ; or, to protect
company creditors, especially unsecured creditors.
Furthermore, the OHADA company legislation makes provision for
both civil and criminal action in damages by a company against its
managers, for inappropriate or fraudulent conduct. Thus, managers may
be jointly or severally liable for corporate wrongs. Indeed, business
associates can also take an individual action (ut singuli) against the entire
management or against individual defaulting managers. In the same vein,
the law makes provision for a company action (ut universi) i.e. action by
the company itself to recover for any prejudice suffered by it as a result of
the mismanagement of one or more managers in carrying out their
duties. In any event, the company action cannot be commenced if the
company is facing imminent dissolution.
It should be noted that, vis-à-vis business associates, the UACCEIG
vests company management organs with wide powers to manage the
company and carry out transactions which bind the latter. Certainly, it is
provided that the articles of association may limit their margin of
manoeuvre, notably by prohibiting them from undertaking very serious
acts or by requiring them to seek the prior authorisation of the business
associates before undertaking any transaction. This does not absolve the
company’s liability because acts accomplished in violation of such
limitations will continue to bind the company, unless it is proven that
the third party acted in bad faith especially if he was fully aware of the
fact that the managers were acting ultra vires the company’s object
36and/or their powers. The question that may be raised here is whether

36 With respect to third parties, considering that the management has wide powers, the OHADA
law guarantees their security. They do not have therefore to verify scope of the powers conferred
on the management. But of course, they must not act in bad faith.
25 the knowledge by the third party must be actual or implied to answer the
test of good faith ? Knowledge can only be actual and not implied since
the Act does not require third parties to verify the scope of the
management’s powers. In fact, publication of company documents at the
registry does not constitute constructive notice. Hence, a third party to a
transaction so decided on is not bound to enquire about any limitation
on the powers of the directors and is presumed to have acted in good
faith unless the contrary is proved.
3.3.1.2 Investors
One of the ways the OHADA reform seeks to encourage investment
flows is by guaranteeing the protection of business associates and third
parties as a prelude to the way foreign investors would view the manner
37in which they might be treated. Professor Anoukaha et al are of the
opinion that foreign investors may take advantage of the UACCEIG by
constituting themselves as an economic interest group to enable them
38realise a non-profitable object. Moreover, the possibility to create
subsidiary companies (discussed below) is both commendable and an
attractive feature to foreign investors. Another investment friendly aspect
of the OHADA reform tagged as being the most attractive to foreign
investors is the introduction of sole trader (shareholder) companies
(societies unipersonnelles) under the Act. The SARL and the SA are the
39only types of companies that can acquire this status . In addition, the SA
can be managed in either of two ways : a board of directors or a general
administrator. An SA with a general administrator is made of three or
less shareholders. The general administrator exercises both the
administrative and management functions of the company. These are

37 Anoukaha et al, op. cit., p. 29 supra.
38 Ibid.
39 It should be noted that the creation of a single shareholder corporation (SA) or limited liability
company (SARL) is one of the innovations of the UA. Before the entry into force of this Act, the
creation of a single shareholder company was only possible in Mali. Likewise, before the entry
into force of this act, the Economic Interest Group only existed in Cameroon, Niger, Mali,
Burkina Faso and Senegal. See Lecat p. 11 supra.
26 innovative features known to OHADA law only that can, under
40appropriate circumstances, encourage holding companies .
3.3.1.3 Third party
The protection generally offered company management via the
separate corporate personality principle may prove to be a strong weapon
against third parties, particularly unsecured creditors dealing with the
company in good faith not knowing the extent of the management’s
powers. It is true that non contentious and contentious remedial actions
(early warning procedures and the individual action respectively) are
available to either avert (in the first case) or punish (in the second case)
otherwise threatened or actual wrongs respectively, by the management.
Yet, the corporate personality principle could be a strong weapon to
shield the liability of those who acted on behalf of a company which is a
complete nullity at law. The wide powers of the management are
therefore advantageous to third parties since nearly every transaction
undertaken by the management in the interest of the company would be
approved by it. Besides, nullifying factors against companies, acts of
defaulting managers, accompanying sanctions against those in charge
when the company is under formation and when it is a going concern
(founders and directors respectively), and remedial measures have been
clearly designed to protect company creditors.
3.3.1.3.1 Recovery by third parties for ultra vires acts.
Under OHADA law, action by the company for prejudice suffered as
a result of ultra vires acts of the directors, lies not against third parties
with whom the directors contracted, but against the directors themselves.
The UACCEIG makes provision for legal action that may be taken
against the directors. They may be sued jointly or severally by the
company or third parties for violating legal or regulatory provisions that
apply to private limited companies. They may also be sued for violating
the articles of association or for certain activities carried out in the course
of managing the affairs of the company. Where the directors are sued

40 Anoukaha et al, op. cit., p. 29 supra.
27 jointly, it is the responsibility of the competent court to determine the
41amount of damages payable by each of them .
Under English law, for example, where the third party is protected by
42section 35 of the 1985 Companies Act, he can recover . If he cannot,
very difficult questions, which have not been satisfactorily settled by case
law, arise. The most troublesome issues here concern loans obtained by
the company by contracts which are ultra vires the company. Where the
company is thus unjustifiably enriched to the detriment of the ultra vires
lender, an action in quasi contract appears to be the appropriate remedy.
However, the House of Lords expressly ruled out such a remedy as an
indirect means of enforcing an ultra vires loan. The lender is thus left
with no option other than the secondary remedies of subrogation and
tracing in law or equity. If his loan has been used to satisfy ultra vires
creditors of the company he is subrogated to their rights against the
43company . Such a lender is, however, not subrogated to securities held
44by those creditors of the company . In other words, he stands in the
position of an ordinary creditor of the company. The ultra vires lender
45may also trace his loan in law or equity into the assets of the company .
If a third party has transferred property to the company in an ultra vires
transaction, it is unclear in the present state of the authorities, whether
title passes to the company. There is minimal authority for the view that
title does pass, at least, if the transfer of property is subsequent to the

41 UACCEIG article 330.
42 Section 35 CA 1985 which provided additional statutory protection where the company has an
objects clause or limits the powers of the board of directors is re-enacted in section 39 of the 2006
Act. Section 39 on the company’s capacity provides in (1) that ‘[T]he validity of an act done by a
company shall not be called into question on the ground of lack of capacity by reason of anything
in the company's constitution.’ When read with section 171 of the 2006 Act (duty of directors to
act within their powers) it has the same effect as section 35 of CA 1985 except that the right of a
member to prevent an ultra vires action in advance is not mentioned in the 2006 Act although it
may survive at Common Law – Smith v Croft (No2) [1988] Ch 114 and Edwards v Halliwell
[1950] 2 All ER 1064.
43 Blackburn Building Society v. Cunliffe, Brooks [1883] 22 Ch. D. 61.
44 Re Wrexham Mold and Cannah’s Quay Railway Co. [1899] 1 Ch. 440) ; Re Wrexham Mold and
Cannah’s Quay Railway Co. [1899] 1 Ch. 440.
45 Re Airedale Co-operative Worsted Manufacturing Society [1953] Ch. 639.
28 46conclusion of the void contract . This position may be based on, albeit,
the not very strong argument that the other party is stopped from
claiming that the contract is void. A better solution would be to treat the
transfer of property to the company in the same manner as transfer of
property by the company in all ultra vires transactions.
Under OHADA law, the remedy of a third party dealing with the
company in ultra vires transactions is recovery against the company,
except, as seen earlier, the company can prove the absence of good faith
on the part of the third party. Such party may also sue the directors for
violating legal or regulatory provisions applying to private limited
companies.
3.3.2 Company restructuring techniques
The UACCEIG offers different company restructuring techniques
which may be of interest to foreign investors particularly, to answer the
exigencies of various investment projects, depending on the form, object
and size of a project. Three of such techniques are specifically discussed
in this section.
3.3.2.1 The joint venture
The UACCEIG makes provision for a joint venture company, which
it refers to as société en participation. Since the phrase ‘joint venture’ refers
to the purpose for creating the entity than the type of entity, the venture
may be a corporation, a limited liability company or a partnership or
47other legal entity . OHADA law does not oblige the registration of the
société en participation with the Trade and Personal Property Credit
Register such that the entity created cannot benefit from the separate
personality principle. In this case, the entity formed would be a joint
venture partnership. Where, however, it is registered, it may be either a
joint venture SA or joint venture SARL.

46. Ayers v. South Australian Banking Company [1871] L R 3 P C 548.
47 ‘When are joint ventures used ?’. Online at : <http ://en.wikipedia.org/wiki/Joint_venture>
(accessed on 22 February 2010).
29

Soyez le premier à déposer un commentaire !

17/1000 caractères maximum.