Arbitration Law in Gabon
Arbitration Law in Gabon
Arbitration in Gabon is governed by a combination of domestic law and international agreements. Gabon is a member of the OHADA (Organisation pour l'Harmonisation en Afrique du Droit des Affaires), a regional organization that harmonizes business law across 17 African countries, including Gabon. The OHADA Uniform Act on Arbitration is the primary legal framework for arbitration in Gabon.
In addition to the OHADA framework, Gabon adheres to international treaties, including the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), which allows for the enforcement of foreign arbitration awards in Gabon.
1. Legal Framework for Arbitration in Gabon
The key legal framework for arbitration in Gabon is the OHADA Uniform Act on Arbitration, which governs the arbitration process in Gabon and other OHADA member states. Gabon, as a member of OHADA, has adopted this legal regime for the resolution of commercial disputes. The Uniform Act was created to standardize arbitration laws across member countries, promoting consistency, legal certainty, and effectiveness in the arbitration process.
Key Provisions of the OHADA Uniform Act on Arbitration:
- Scope of Application: The OHADA arbitration law applies to both domestic and international disputes, provided that they are related to commercial activities.
- Arbitration Agreement: The agreement to arbitrate must be in writing. It can be part of a larger contract or a standalone agreement.
- Arbitration Procedure: The parties are free to choose the procedural rules and the seat of arbitration. In the absence of an agreement, the arbitral tribunal has the authority to establish the rules.
- Appointment of Arbitrators: The parties may agree on the number of arbitrators (usually one or three). If they cannot agree, the courts may intervene to appoint the arbitrators.
2. Key Features of Arbitration Law in Gabon
Arbitration Agreement
In Gabon, an arbitration agreement must be in writing. It can take the form of a clause in a contract or a separate document. The agreement must indicate the parties’ intention to resolve any dispute through arbitration, and it is enforceable under the OHADA Uniform Act.
- Non-arbitrable disputes: Certain matters, such as those relating to personal status or public policy, cannot be subject to arbitration.
- Enforceability: If one party refuses to arbitrate, the other party can request the court to compel arbitration, as long as there is a valid arbitration agreement.
Arbitrators
Under the OHADA Uniform Act, the parties have the freedom to appoint their arbitrators. If the parties cannot agree on the appointment of arbitrators, they may request the Gabonese courts to appoint the arbitrators.
- The number of arbitrators is typically one or three, but this is up to the parties to decide.
- Arbitrators must be independent and impartial, and they should have the expertise required for the dispute.
Arbitration Procedure
The OHADA Uniform Act allows the parties considerable flexibility in deciding the rules for their arbitration process. If the parties do not agree on procedural rules, the arbitral tribunal has the power to determine the procedure.
- The seat of arbitration can be chosen by the parties, and it does not have to be in Gabon, as long as it complies with the agreement.
- The language of the proceedings can be determined by the parties.
- The tribunal can adopt rules for expedited procedures if the parties agree or if the case requires it.
Confidentiality
Arbitration in Gabon is generally confidential, in line with international arbitration practices. The proceedings, as well as the award, are typically not made public unless the parties agree to disclosure. Confidentiality is a key feature of arbitration, especially in commercial disputes where sensitive business information is involved.
3. Judicial Intervention
In Gabon, the role of the judiciary is limited in arbitration. Courts intervene only in specific situations, such as:
- Compelling Arbitration: If one party refuses to participate in arbitration, the other party can ask the court to compel the dispute to be resolved through arbitration.
- Annulment of Arbitral Awards: Gabonese courts can annul an arbitral award under certain circumstances, such as:
- Violation of the arbitration agreement.
- Procedural irregularities, such as denial of due process.
- Public policy violations: If the award contravenes Gabon’s public policy, the court may set it aside.
Appeals: There is typically no appeal on the merits of an arbitral award. However, the award may be challenged based on the aforementioned grounds of annulment.
4. Enforcement of Arbitral Awards
Gabon is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). This means that foreign arbitral awards can be enforced in Gabon under the conditions set forth in the Convention, provided the award does not violate Gabonese public policy.
Domestic Awards: Arbitral awards made in Gabon are enforceable without needing additional judicial proceedings. However, parties may request an exequatur (recognition of the award) if necessary.
Foreign Awards: Foreign awards are also enforceable in Gabon, provided they meet the requirements of the New York Convention and do not contravene Gabon’s public policy.
5. Arbitration Institutions in Gabon
While Gabon does not have its own established arbitration institutions, it has access to various regional and international arbitration institutions. The OHADA Uniform Act provides that the parties can select an arbitration institution or appoint an ad hoc tribunal.
Common Court of Justice and Arbitration (CCJA): The CCJA is the central institution for arbitration under the OHADA system. It provides a framework for resolving disputes and administering arbitration under the OHADA Uniform Act. Although based in Abidjan, Ivory Coast, the CCJA’s rulings are applicable across all OHADA member states, including Gabon.
International Chamber of Commerce (ICC): The ICC, headquartered in Paris, is one of the leading global institutions for international arbitration. The ICC’s rules are widely used in Gabon for resolving international commercial disputes.
Arbitration Centres in Africa: Gabonese businesses may also seek to resolve disputes through regional centers such as the Lagos Court of Arbitration in Nigeria, the Cape Town Arbitration Centre in South Africa, or other regional institutions within Africa that provide arbitration services.
6. Advantages of Arbitration in Gabon
- Pro-Arbitration Legal Framework: The OHADA Uniform Act offers a modern and pro-arbitration legal framework, which facilitates the resolution of commercial disputes in Gabon.
- International Recognition: Gabon’s adherence to the New York Convention ensures that both domestic and foreign arbitral awards are enforceable within the country.
- Flexibility: Parties have considerable freedom in choosing arbitration procedures, institutions, and even the seat of arbitration, providing a highly flexible dispute resolution mechanism.
7. Challenges of Arbitration in Gabon
Limited Local Arbitration Infrastructure: Although arbitration is legally supported in Gabon, there are fewer specialized local institutions or experienced arbitration practitioners compared to larger international centers. This can lead to challenges in finding arbitrators or setting up proceedings domestically.
Geographic and Logistical Considerations: Gabon’s location may present logistical challenges for international arbitration, such as travel costs and time zone issues for foreign parties and arbitrators.
Costs: The cost of arbitration, especially if international institutions like the ICC are involved, may be high due to the fees for arbitrators, administration, and travel.
Conclusion
Arbitration in Gabon is governed by the OHADA Uniform Act on Arbitration, which ensures that Gabon follows modern, internationally accepted standards for arbitration. The country's adherence to the New York Convention further enhances the enforceability of foreign awards. While the country benefits from a flexible and pro-arbitration legal environment, challenges such as limited local infrastructure and costs may arise. However, Gabon remains an attractive location for arbitration, particularly in commercial disputes within the OHADA region.
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