Act No. 028/PR/2020 on the Code of Civil, Commercial and Social Proceedings and arbitration law in Chad: the chronicle of an ineffective legal reform

Wednesday 24 November 2021

Mahamat Atteib

Geni & Kebe Lawyers, Dakar

m.atteib@gsklaw.sn

The structure of arbitration law in the Republic of Chad is mainly based on community arbitration law through the Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA) Uniform Act on Arbitration (UAA) and national implementing rules adopted by the Republic of Chad, as an OHADA state member, on arbitration-related matters involving the intervention of Chadian courts.[1]

Some OHADA members, including the Republic of Senegal, have adopted specific national rules to implement the UAA.[2] Chad has not taken similar measures; this left a quasi-legal vacuum because Chad’s Ordinance of 28 July 1967 on the Civil Proceedings Code (the 1967 Code) does not sufficiently address certain issues in arbitration, and its provisions had not been amended to reflect the UAA provisions.

On 31 December 2020, Chad adopted the Act No. 028/PR/2020 on the Code of Civil, Commercial and Social Procedure (the 2021 Code) and it entered into force in March 2021. The 2021 Code repeals and replaces all previous arbitration laws, including those provided by the 1967 Code.[3] The 2021 Code has therefore been seen as the perfect opportunity to effectively implement the UAA in Chad and to guide arbitration practice within the country.

To implement the UAA, the 2021 Code provided rules designating competent courts to hear proceedings for the annulment of arbitral awards, to appoint arbitrators and the enforcement of awards. However, the 2021 Code missed the opportunity to address specific arbitration-related issues identified by the UAA and to tackle arbitration as a form of dispute resolution potentially applicable to all kinds of disputes.

This article briefly presents the legal framework of arbitration and alternative dispute resolution (ADR) in Chad, discusses the provisions of the 2021 Code implementing the UAA, and finally makes proposals for restructuring arbitration law to make Chad an attractive arbitration jurisdiction.

The legal framework of arbitration and ADR in Chad

OHADA Uniform Acts on Arbitration and Mediation

On 23 November 2017, OHADA adopted a new UAA, which repeals and replaces the Uniform Arbitration Act of 11 March 1999 (the old UAA) and at the same time, sets up a new Uniform Act on Mediation (UAM).[4]

The UAA constitutes the arbitration law in Chad and applies to any arbitration where the seat of the arbitral tribunal is located in one of the OHADA member states.[5] The UAA provides extensive and modern arbitration rules,[6] including investment arbitration provisions, the definition of fixed duration of the arbitral proceedings and the possibility for the parties to provide for waiver of annulment recourse[7]. It governs ad hoc arbitrations and provides default rules for institutional arbitrations.

The UAM is an innovation as there were hitherto no specific and comprehensive rules governing mediation in Chad. The UAM is therefore the national law of mediation in Chad for all mediation proceedings, excluding those carried out under the auspices of courts or arbitral tribunals.[8] Decisions arising from mediation proceedings conducted under the UAM are enforceable before arbitral tribunals and Chadian courts.

Judicial and arbitral proceedings undertaken in violation of these mediation agreements are void.[9] From substantive contract law perspective, proceedings initiated in violation of a mediation agreement may amount to a breach of contract and give rise to a remedy in damages.[10] Additionally, the mediation agreement may be subject to forced execution, and can be enforced or confirmed by the national competent court pursuant to the UAM. The 2021 Code does not specify which court is competent or the procedure which applies.[11]

Conciliation and mediation under the auspices of Chadian courts

The 2021 Code encourages recourse to ADR during judicial proceedings before Chadian courts. The Code includes new provisions relating to mediation and conciliation.

For instance, it provides that the judge must endeavour to reconcile the litigants, ie encouraging settlement between the litigating parties. This provision allows the judge to accept a conciliation (settlement) proposal made by the litigants or, on their own initiative, request the parties to consider settlement. In all cases, the agreement resulting from the conciliation proceeding is enforceable and is not subject to appeal.[12] This new development is noteworthy since promotes a negotiated, enforceable solution. It reflects a general trend towards settlement with a peacemaker judge who allows the parties to explore alternative means of dispute resolution.[13]

The 2021 Code also provides for mediations conducted by third parties where the mediator is proposed by the parties or appointed based on the proposal of the judge. The judge would therefore enforce the mediation agreement by referring the dispute for mediation after ascertaining that the agreement is valid.

The 2021 Code and the implementation of UAA in Chad

Constitution of arbitral tribunal

Under the 2021 Code, the President of the Commercial Court is empowered to appoint the third arbitrator to chair the tribunal where the party-appointed arbitrators are unable to agree on the third arbitrator. They can also appoint an arbitrator where a party fails to appoint its arbitrator ,or in case of challenge, incapacity or death of an arbitrator. The President of the Commercial Court intervenes according to an emergency procedure (procédure de référé) provided for in articles 507–513 of the 2021 Code. While it is the President of the Court of First Instance that is empowered to make the appointment under the 1967 Code,[14] the 2021 Code empowers the President of the Commercial Court.

While the intervention of national courts through emergency procedure constitutes an important evolution in arbitration proceedings, it should nevertheless be noted that the numbering of the articles in the 2021 Code are those of the old UAA. The Chadian government should consider changing the numbering of the articles in the UAA and amending the 2021 Code accordingly.

Support for production of evidence and extension of time limit of arbitration proceedings

Pursuant to Article 14 of the UAA, the arbitral tribunal may require, if necessary, the assistance of the courts for the taking of evidence. The 2021 Code provides that the President of the Commercial Court is competent to support the production of evidence.[15] Additionally, the President of the Commercial Court has power to extend the duration of arbitration proceedings when the legal or conventional duration expires, and the parties do not agree on a new duration.[16] In both cases, the President of the Commercial Court is empowered through the procédure de référé.[17]

Exequatur of arbitral awards

The President of the Tribunal of First Instance of N'Djamena has exclusive jurisdiction pursuant to Article 483 of the 2021 Code over exequatur application. The latter refers to procedure under which an arbitral award is recognised and enforced by courts in the OHADA region.

The 2021 Code does not specify the procedure under which the application for enforcement should be made. Therefore, the enforcement procedure provided by the UAA applies. The UAA specifies the documents to be provided in support of the enforcement application and the time limit within which the enforcement decision should be rendered.[18] The UAA states that, if the court has not issued its decision by the end of this period, the enforcement is deemed to have been granted.

The designation of the Court of Appeal of N'Djamena and the President of the Tribunal de Grande Instance of N'Djamena as the exclusively competent judges to render a decision on exequatur application seems to stem from a logic of privileging the most experienced judges and courts – which are presumed to be those of N'Djamena.

Annulment of arbitral awards

Under the 2021 Code, the Court of Appeal of N'Djamena has exclusive jurisdiction over annulment of arbitral awards in accordance with the annulment procedure provided for in Articles 569–586.

However, the UAA provides that the competent court, in this case the Court of Appeal, must rule within a period of three months following the referral of the challenge. Failing this, the case will be relinquished to the OHADA Common Court of Justice and Arbitration (CCJA).[19] In this case, the annulment recourse will be brought before the CCJA within the next fifteen days.[20] The CCJA will rule within a maximum of six months following the referral. In addition, pursuant to Article 28 of the UAA, the Court of Appeal has jurisdiction over provisional execution-related disputes, as the latter constitutes an exception to the principle of the suspensive effect of annulment recourse.

Unaddressed arbitration-related matters

The 2021 Code failed to address some arbitration-related issues under the UAA, including the determination of competence to render an additional award if the arbitral tribunal that rendered the final award cannot meet again.[21] Additionally, it is important to specify the court that has jurisdiction to issue interim measures, pursuant to Article 10 of the CCJA Arbitration Rules.

Moreover, it is important to specify the competent body to fix a formule exécutoire (formal exequatur) upon the original of the award recognised by the CCJA or under the UAA.[22]

The pending issue of material scope of arbitration

The UAA provides that any natural or legal person may resort to arbitration with respect to any rights that may be freely disposed of.[23] It is then for OHADA member states to complete the material scope of arbitration by providing definition to the concept of rights that may be freely disposed of.

The 2021 Code does not address this issue. According to Article 370 of the 1967 Code, any person can resort to arbitration on any issue, except matters that are of interest to public order and matters related to etat et capacité de personnes (a natural person’s status and capacities). While this provision should be protective of domestic arbitrations, it could be considered restrictive to international arbitration.

Although the UAA provides a unique arbitration law without making any distinction between domestic and international arbitration, the issue is whether domestic and international arbitrations should be logically tackled through a same legal regime. Article 2 of the UAA leaves the possibility to the Chadian competent authorities to implement the concept of ‘rights that parties may be freely disposed of’. To implement this concept, Chadian authorities could provide protective regulations applicable to domestic arbitrations involving employees’ and consumers’ parties. The implementation of Article 2 of the UAA will be the first step to set up specific rules to each domestic and international arbitrations.

Proposals to restructure arbitration law in Chad and to strengthen the attractiveness of Chadian arbitration market

The issue of the material scope of arbitration under Article 2 of the UAA is a pretext to question the structure of arbitration law in Chad. OHADA law appears to be designed to attract foreign investment in the OHADA region and UAA is drafted to meet international arbitration expectations. However, it is important to have a national arbitration law in line with local markets’, investors’, and users’ characteristics and expectations. Local users –including consumers, employees and public entities – need specific arbitration rules supporting an independent and equitable forum to handle civil and commercial disputes. Additionally, the extension of diplomatic immunity to arbitrators sitting in Chad will be a feature that attracts high-calibre arbitrators to the Chadian market. The current legal regime grants this immunity only to arbitrators appointed or confirmed by the CCJA court.[24]​​​​​​​

From an international arbitration perspective, Chadian policymakers and courts need to effectively implement the provisions of the UAA, as well as fully considering arbitration-related matters with the spirit of international dispute resolution and according to the UAA provisions.

Moreover, Chad should ratify the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) to facilitate enforcement of international arbitral awards in Chad and to promote Chad as a seat of arbitration in Africa.

Finally, training and capacity building of local legal professionals and other stakeholders in arbitration will be a key driver to strengthen arbitration in the country.

The outcome of those future reforms and initiatives will contribute not only to the attractiveness of the Chadian arbitration market, but also to the improvement of access to justice and the business environment within the country.


[1] OHADA is the French acronym of Organisation for the Harmonisation in Business Law in Africa. It is an international organisation established in 1993, comprising 17 member states: Benin, Burkina Faso, Cameroon, Comoros, Congo (Brazzaville), Ivory Coast, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, Central African Republic, Democratic Republic of Congo, Senegal, Chad, and Togo. One of OHADA’s key institutions is the Common Court of Justice and Arbitration (CCJA Court), a supranational Court which controls the interpretation and the application of Uniform Acts by member states’ courts.  The CCJA also includes an arbitration Centre (CCJA Arbitration Centre) with its own arbitration rules.

[2] Decree No. 2019-951 of 27 May 2019 designates the competent national courts for state cooperation in arbitration proceedings under the UAA and the CCJA Arbitration Rules.

[3] Sylvanus Bassounda and Olivier Bustin, ‘Tchad : réforme de la procédure civile, commerciale et sociale’ (May 2021), No. 5, l’essentiel de droits africains des affaires, 1

[4] Michael W. Bühler, ‘Out of Africa: The 2018 OHADA Arbitration and Mediation Law Reform’ (2018), 35, no. 5,  Journal of International Arbitration, 517–540.

[5] UAA, Art 35.

[6] The UAA is not based on the UNCITRAL Arbitration Model Law. However, its provisions are consistent with the fundamental principles of international arbitration and main features of the UNCITRAL Model Law.

[7] Mouhamed Kebe, ‘The attractiveness of the OHADA Arbitration System’ (DLA Piper, 7 December 2018), see hwww.dlapiperafrica.com/fr/senegal/insights/2018/the-attractiveness-of-the-ohada-arbitration-system.html.

[8] UAM, Arts 2 and 17.

[9] Such a solution is in line with the definition of ‘fins de non-recevoir’ as provided for in Art 187 of the new CPC, and is in line with the trend in international case law on the subject. See Doug Jones, ‘Dealing with multi-tiered dispute resolution process’ (2009), 75(2), Arbitration, 191

[10] Art 1156 and seq of the French Civil Code of 1958, made applicable to Chad by Legislative Act No. 1 establishing the Constitution of 31 March 1959, and by Constitutional Act No. 2/62 of 16 April 1962.

[11] UAM, Art 16.

[12] 2021 Code, Art 18

[13] François Ost, ‘Jupiter, Hercule, Hermes: trois modèles du juge’, in Pierre Bouretz (ed), La force du droit (Esprit, 1991) 241–272.

[14] 1967 Code, Art 379.

[15] 1967 Code. a Art 688.

[16] Ibid.

[17] Ibid.

[18] 1967 Code, Art 31.

[19] 1967 Code, Art 27.

[20] Ibid.

[21] UAA, Art 22.

[22] UAA, Art 31.

[23] UAA, Art 2.

[24] OHADA Treaty, Art 48.