Arbitration Law in Burkina Faso
Arbitration Law in Burkina Faso
Burkina Faso has developed a legal framework for arbitration that aligns with international standards, particularly the UNCITRAL Model Law and the New York Convention. Arbitration is an important means of resolving disputes in Burkina Faso, particularly for commercial and investment-related matters. The Arbitration Law in Burkina Faso is designed to promote and facilitate the use of arbitration as a dispute resolution mechanism, both domestically and internationally.
1. Legal Framework for Arbitration in Burkina Faso
Arbitration Law (1998)
- The Arbitration Law of Burkina Faso, enacted in 1998, governs the arbitration process in the country. The law aims to provide a clear and efficient process for both domestic and international commercial arbitration.
- This law is aligned with the UNCITRAL Model Law on International Commercial Arbitration, and it allows arbitration to be a central method of resolving disputes outside of the traditional court system.
New York Convention (1958)
- Burkina Faso is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), which facilitates the recognition and enforcement of foreign arbitral awards in Burkina Faso. This means that foreign arbitral awards issued in jurisdictions that are also signatories to the Convention can be enforced in Burkina Faso, subject to certain conditions.
OHADA (Organization for the Harmonization of Business Law in Africa)
- Burkina Faso is a member of the OHADA system, a treaty organization consisting of 17 African countries. Under OHADA, member states, including Burkina Faso, have adopted a uniform arbitration law that regulates arbitration proceedings and dispute resolution within the region. The OHADA Uniform Act on Arbitration governs commercial arbitration in Burkina Faso and provides a harmonized set of rules for arbitration across OHADA member states.
- The OHADA Arbitration Rules are modeled after the UNCITRAL Model Law, and they offer an important framework for arbitration proceedings in Burkina Faso.
2. Key Features of Arbitration in Burkina Faso
Arbitration Agreement
- An arbitration agreement must be in writing and signed by the parties. The agreement should express the intention of the parties to settle disputes by arbitration instead of litigation.
- It is typical for arbitration clauses to be included in commercial contracts, which may specify the number of arbitrators, the seat of arbitration, and the rules to govern the arbitration process (e.g., UNCITRAL, OHADA, or institutional rules).
Arbitral Tribunal
- The parties have the freedom to determine the number of arbitrators (usually one or three) and the process for their appointment. In the absence of an agreement, the default number is three arbitrators.
- The arbitrators must be independent, impartial, and have expertise in the subject matter of the dispute.
- If the parties cannot agree on the appointment of arbitrators, they may seek the assistance of a court or an arbitral institution to make the appointments.
Arbitration Procedure
- The arbitration procedure in Burkina Faso is flexible, allowing the parties to choose the rules and procedures to follow. This can include institutional rules (e.g., OHADA, ICC, UNCITRAL) or ad hoc arbitration procedures.
- The arbitral tribunal has broad discretion to set the rules for the arbitration process, including the procedural timetable, how evidence is presented, and how hearings are conducted.
- Interim measures may be requested by the parties from the arbitral tribunal or from the court.
Language of Arbitration
- The parties are free to choose the language of the arbitration. In the absence of an agreement, the arbitral tribunal may determine the language based on the circumstances of the case.
3. Judicial Intervention in Arbitration
Minimal Judicial Intervention
- The Arbitration Law of Burkina Faso emphasizes minimal judicial intervention. Courts are generally not involved in the arbitration process except in specific circumstances, such as:
- Enforcing arbitration agreements.
- Appointing arbitrators when the parties cannot agree.
- Enforcing arbitral awards.
- Setting aside arbitral awards in cases of procedural irregularities or public policy violations.
Setting Aside an Arbitral Award
- An arbitral award can be set aside by the court on very limited grounds, including:
- The arbitration agreement was not valid.
- The arbitrators exceeded their powers or did not have jurisdiction.
- The procedural rules were violated, or there was a failure to provide the parties an opportunity to present their case.
- The award violates Burkina Faso’s public policy.
Court’s Role in Interim Measures
- While the arbitral tribunal has the power to issue interim measures, the court can also intervene to grant interim measures if necessary, especially when there is an urgency to protect assets or prevent harm during the arbitration process.
4. Enforcement of Arbitral Awards
- Domestic Arbitral Awards
- Domestic arbitral awards are enforceable by Burkina Faso’s courts. If a party refuses to comply with an award, the winning party can apply to the court for enforcement.
- Foreign Arbitral Awards
- As a signatory to the New York Convention, Burkina Faso enforces foreign arbitral awards rendered in jurisdictions that are also signatories to the Convention, subject to limited exceptions.
- The court will recognize and enforce foreign awards, but it can refuse enforcement on the grounds of:
- Violation of Burkina Faso’s public policy.
- Procedural irregularities (e.g., lack of proper notice).
- Lack of jurisdiction of the arbitral tribunal.
5. Arbitration Institutions in Burkina Faso
Burkina Faso Arbitration Centre
- The Burkina Faso Arbitration Centre provides an institutional framework for domestic and international arbitration. It offers a neutral venue for resolving disputes under a range of internationally recognized arbitration rules.
OHADA Arbitration
- As a member of OHADA, Burkina Faso is subject to the OHADA Uniform Act on Arbitration, which provides a harmonized set of rules for arbitration across the 17 OHADA member states. OHADA offers both institutional arbitration services and ad hoc arbitration procedures.
International Arbitration Institutions
- In addition to local institutions, Burkina Faso allows for arbitration under international institutional rules such as those from the International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), and Singapore International Arbitration Centre (SIAC).
6. Advantages of Arbitration in Burkina Faso
Pro-Arbitration Legal Framework
- The Arbitration Law (1998) and Burkina Faso’s membership in OHADA provide a supportive and pro-arbitration legal framework. This ensures that arbitration is an efficient and predictable means of resolving disputes.
Enforceability of Foreign Awards
- As a signatory to the New York Convention, Burkina Faso offers a clear mechanism for the enforcement of foreign arbitral awards, making it an attractive jurisdiction for international businesses.
Neutral Venue for Disputes
- Burkina Faso’s neutral position in West Africa, coupled with its growing legal infrastructure, makes it an attractive jurisdiction for cross-border arbitration.
Confidentiality
- Arbitration in Burkina Faso generally offers confidentiality, which is valuable for businesses involved in sensitive commercial or financial disputes.
7. Challenges and Considerations
Limited Awareness in Some Sectors
- While arbitration is recognized in Burkina Faso, some local businesses may have limited awareness of the benefits of arbitration compared to litigation. This could affect the willingness to choose arbitration for dispute resolution.
Public Policy Issues
- The potential for public policy exceptions when enforcing awards can pose challenges, particularly in cross-border arbitration.
Costs of Arbitration
- The costs of arbitration, especially in complex or high-value disputes, can be significant. However, arbitration generally offers a quicker resolution than traditional litigation, making it a cost-effective alternative in the long run.
Conclusion
Burkina Faso offers a modern and pro-arbitration legal framework for resolving domestic and international disputes. The Arbitration Law (1998), aligned with UNCITRAL Model Law, the New York Convention, and OHADA, provides a secure, efficient, and internationally recognized mechanism for arbitration. With a growing arbitration-friendly environment, Burkina Faso is increasingly becoming an attractive jurisdiction for resolving commercial disputes in West Africa.
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