Arbitration Law in Mauritania
Arbitration Law in Mauritania
Mauritania's arbitration law is based on both domestic legal provisions and international agreements. The country’s legal system allows for the resolution of disputes through arbitration, with a framework that incorporates both national laws and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The key legal provisions related to arbitration are found within Mauritania's Civil Procedure Code, along with other international conventions to which Mauritania is a signatory.
1. Legal Framework
Civil Procedure Code: Mauritania’s domestic arbitration law is embedded within the Code of Civil Procedure. This code outlines the legal procedures for both domestic and international arbitration in the country.
International Treaties: Mauritania is a signatory to key international conventions that govern arbitration, including:
- The New York Convention (1958), which ensures the recognition and enforcement of foreign arbitral awards.
- The OHADA Treaty (Organization for the Harmonization of Business Law in Africa): Mauritania is a member of OHADA, which has harmonized business laws across several African countries. Under OHADA, Uniform Act No. 2 (relating to arbitration) applies to Mauritania as a signatory, offering a unified arbitration framework across member states.
2. Arbitration Agreement
Form of Agreement: An arbitration agreement in Mauritania must be in writing. This can be included in contracts or as a separate agreement. The agreement must indicate a clear intention to resolve disputes via arbitration rather than through litigation in the courts.
Scope: The arbitration agreement can cover civil, commercial, and contractual disputes. However, certain matters, such as family law, criminal cases, and other public policy concerns, are typically excluded from arbitration.
3. Types of Arbitration
Domestic Arbitration: Arbitration where both parties are from Mauritania or where the dispute is purely domestic in nature. This form follows the provisions under Mauritania’s Civil Procedure Code and the OHADA rules.
International Arbitration: Mauritania also allows for international arbitration, particularly under the New York Convention. Disputes that involve foreign parties are generally governed by international treaties and agreements, as well as any specific arbitral rules agreed upon by the parties.
4. Arbitration Procedure
Appointment of Arbitrators: The parties to the dispute are generally free to appoint the arbitrators of their choice. If the parties cannot agree, the court can intervene to appoint arbitrators. The typical number of arbitrators is one or three, depending on the agreement.
Arbitral Rules: The parties can choose the rules that govern the arbitration process. This could be institutional arbitration under organizations like the International Chamber of Commerce (ICC), OHADA, or UNCITRAL rules, or they may opt for ad hoc arbitration, where the parties set the procedural rules themselves.
Seat of Arbitration: The seat of arbitration refers to the jurisdiction under which the arbitration will take place. This may be agreed upon by the parties or determined by the tribunal in the absence of agreement. The seat impacts the procedural laws that govern the arbitration.
5. Role of Courts
Limited Judicial Intervention: Courts in Mauritania have a limited role in the arbitration process. Their involvement is generally restricted to matters such as:
- Appointment of Arbitrators: If the parties cannot agree on arbitrators, the courts can intervene to make appointments.
- Interim Measures: While arbitrators can issue provisional measures, Mauritania’s courts can also grant interim relief if needed during the arbitration.
- Annulment of Awards: After an arbitration award is issued, Mauritanian courts can annul the award on limited grounds, such as if the award violates public policy or if due process was not followed during the arbitration.
Stay of Court Proceedings: If a dispute is subject to an arbitration agreement, Mauritanian courts will generally stay litigation proceedings and refer the dispute to arbitration upon request by one of the parties.
6. Recognition and Enforcement of Arbitral Awards
Domestic Awards: Domestic arbitral awards are enforceable in Mauritania once issued. There are limited grounds for challenging such awards, such as lack of jurisdiction or procedural irregularities.
Foreign Awards: Mauritania is a signatory to the New York Convention, which means that foreign arbitral awards are recognized and enforceable in the country. To enforce a foreign award, the party seeking enforcement must apply to the Mauritanian courts, and the award will be enforced unless it is shown to violate public policy or other limited grounds for non-recognition.
7. Advantages of Arbitration in Mauritania
Legal Framework and OHADA: Mauritania’s membership in the OHADA system provides it with a modern and well-defined arbitration framework. The OHADA arbitration rules are uniform across several African nations, ensuring consistency and predictability in arbitration processes.
International Recognition: Mauritania’s adherence to the New York Convention ensures that international commercial parties can rely on the recognition and enforcement of their arbitral awards.
Choice and Flexibility: Parties can select from a wide range of arbitration rules and institutions, ensuring flexibility in the arbitration process. They can also choose a neutral seat of arbitration, which could be beneficial for international parties.
8. Challenges and Opportunities
Challenges
Lack of Local Arbitration Institutions: Mauritania lacks a robust, local arbitration infrastructure compared to other more developed arbitration hubs. This can make access to skilled arbitrators or arbitral institutions more challenging, particularly for those unfamiliar with the legal landscape.
Awareness and Familiarity: Arbitration is still evolving in Mauritania, and there may be limited awareness among businesses and legal professionals about its full benefits, which could hinder its widespread adoption.
Opportunities
Promoting Arbitration in Mauritania: Given Mauritania's participation in OHADA and international conventions, there is an opportunity to build a stronger arbitration hub within the country, particularly for disputes within the West African region.
Role as a Regional Arbitration Center: Mauritania has the potential to position itself as a key arbitration center for Francophone Africa, leveraging its OHADA membership and proximity to other African countries to attract arbitration disputes.
9. Conclusion
Mauritania’s arbitration law is primarily governed by the Code of Civil Procedure and the OHADA framework, alongside its obligations under international treaties such as the New York Convention. The legal system in Mauritania supports both domestic and international arbitration, with a modern approach that ensures recognition and enforcement of foreign arbitral awards. However, the country faces challenges in terms of local arbitration infrastructure and awareness. Nevertheless, Mauritania’s membership in OHADA and commitment to international conventions provides a solid foundation for the future development of arbitration in the region.
RELATED Blog
0 comments