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Unlike mediation, arbitration is a contentious procedure providing for the resolution of the dispute by an Arbitral Tribunal which will render an enforceable decision (the “arbitral award”), binding on both parties.
An Arbitral Tribunal comprises one or more arbitrators. They are generally lawyers, professors of law or jurists, demonstrating a very thorough knowledge of business law, particularly in an international context.
The arbitral award is rendered after a multi-stage procedure, allowing the parties to provide written submissions and defend their points of view at hearings.
Arbitration has a number of advantages for companies.
Insofar as an appeal is not possible against an arbitral award, these characteristics make arbitration undoubtedly the most attractive means of resolving commercial disputes, both domestic and international.
The CARO Centre is the entity that will appoint the arbitrator or arbitrators. It identifies those best suited to conduct the proceedings according to the characteristics of your dispute and ensure that the arbitration proceedings are conducted in accordance with the OHADAC Institutional Arbitration Rules.
The Centre will generally appoint one arbitrator, except when the complexity of the dispute and the amounts at stake justify the appointment of three arbitrators.
In order to make this appointment, the Centre will consider the legal issues raised by your dispute, the expertise required to resolve it, any language skills required, as well as the scheduling constraints of the parties.
The Centre is also responsible for the financial management of the arbitral proceedings. Thus, the fees are paid to the Centre, which then transfers them to the Arbitral Tribunal as it carries out its mission.
Finally, the Centre supervises the smooth running of the arbitration process, while respecting the time constraints of the parties and the rules of ethics in force. In case of difficulty, it may replace the Arbitral Tribunal if an agreement to arbitrate exists.
As with mediation, there are two ways to apply to the Centre:
(i) Insert an OHADAC arbitration clause at the initial drafting of the contract, along the following lines:
All disputes arising out of or in connection with the present contract, including disputes relating to its validity, its interpretation, its enforcement or its termination, shall be finally settled under the Arbitration Rules of the OHADAC Regional Arbitration Centre (the “CARO Centre”) by one or more arbitrators appointed in accordance with the same Rules.
Recommended additional provisions to be added:
(ii) Expressing agreement to refer the matter to the Centre when the conflict arises
In such circumstances and in accordance with the OHADAC Institutional Arbitration Rules, a party refers the matter to the Centre by communicating the identities and contact information of the other parties to the contract whose execution raises difficulties.
The Centre will then contact them to obtain their agreement and will proceed, if necessary, with the commencement of the arbitration proceedings.
The CARO Arbitration Schedule provides for the cost of an arbitration procedure, which is a factor of the amount at stake in the dispute.