The Treaty on the Harmonization of Business Law (OHADA Treaty) in Africa, signed in Port Louis (Mauritius) on October 17, 1993, entered into force on September 18, 1995, and was ratified by 17 states, including Benin. The OHADA Treaty aims to promote arbitration as an instrument for settling contractual disputes. It was revised in Quebec City on October 17, 2008 and entered into force on March 21, 2010.

Benin, by ratifying the said treaty, has agreed to introduce arbitration in Benin. This desire to arbitrate in Benin was reaffirmed in Law No. 2020-02 of March 20, 2020, relating to the investment code of Benin, in Article 45, paragraph 3.

This desire has also been reaffirmed in other texts such as the Code of Civil and Commercial Procedure, the Code of Criminal Procedure and case law of the Constitutional Court.

1.1 Advantages

Advantages of arbitration are:

• it eliminates the contentious aspect of a dispute;
• it is fast;
• it is remarkably flexible;
• no advertising;
• there is no state interference in arbitration procedures; and
• the rules are simplified.

1.2 Disadvantages and common pitfalls

Some potential pitfalls of arbitration are:

• the selection of referees;
• the cost of arbitration can sometimes be excessive; and
• there may be difficulties in enforcing arbitral awards in the OHADA Treaty area, particularly in Benin.

1.3 Distinctive features

Arbitration, unlike other procedures in Benin, is flexible, neutral and rapid.

2.1 Legal framework

The principal laws relating to international arbitration in Benin are:

• The OHADA Treaty.
• The revised Uniform Act on Arbitration Law (AUA).
• The Arbitration Rules of the Common Court of Justice and Arbitration (CCJA).
• Law No. 2020-02 of March 20, 2020, relating to the Investment Code of Benin, at Article 45, paragraph 3.

2.2 What qualifies under domestic law as “international arbitration”? Is there a specific statute?

In Benin, the revised AUA applies to all arbitration, both domestic and international, when the seat of the arbitral tribunal is in the OHADA Treaty area. There is no specific law that distinguishes international arbitration from domestic arbitration, but the AUA provides a common legal framework for both types of arbitration.

2.3 Ratification of the New York Convention

Benin ratified the New York Convention on May 16, 1974.

2.4 Ratification of the ICSID Convention

Benin ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID) on September 6, 1966.

2.5 Other treaties relating to arbitration

In Benin, there are no other treaties relating to arbitration apart from those already mentioned. There are, however, bilateral treaties between Benin and other states, giving effect to court (and arbitration) rulings handed down in the territory of these states.

2.6 Choice of forum for intra-EU dispute settlement

Benin is not a member of the European Union (EU); however, there is a judicial agreement with France, which is a member of the EU.

2.7 Is the municipal law governing arbitration based on UNCITRAL Model Law?

The applicable internal law is the OHADA Treaty law; however, it is the OHADA Treaty law that allows the parties to the arbitration to freely choose the law that will apply to their arbitration at the substantive level. In their arbitration agreement, the parties may therefore choose a law enacted by a non-state body such as the International Bar Association, or a law of an inter-state body, such as CNUDCI (Commission des Nations Unies pour le droit commercial international), or the national law of any state.

2.8 Recent amendments or reforms to arbitration laws

The Uniform Act of March 11, 1999 relating to arbitration law (AUA), which came into force on June 11, 1999, was revised on November 23, 2017 and came into force on February 23, 2018. Since then, no further revisions have been made.

Local arbitration institutions in Benin play a crucial role in resolving commercial and legal disputes, offering specialized services tailored to the needs of the parties involved.

3.1 Presence of local arbitration institutions

Local arbitration institutions include:

• the Arbitration, Mediation and Conciliation Center (CAMeC) organ of the Chamber of Commerce and Industry of Benin;
• the Arbitration and Mediation Office of Maître Elvire VIGNON, Honorary Lawyer;
• Consensus Gates Benin (CGB), Secretary General, Mr. T. François Kougni.

3.2 Does the London Court of International Arbitration (LCIA) have a local office?

The London Court of International Arbitration (LCIA) does not have a local office in Benin.

3.3 Does the Permanent Court of Arbitration (PCA) have a local office?

The Permanent Court of Arbitration (PCA) does not have a local office in Benin.

3.4 Does the ICC International Court of Arbitration have a local office?

The ICC International Court of Arbitration does not have a local office in Benin.

3.5 Does the International Centre for Dispute Resolution (ICDR) have a local office?

The International Centre for Dispute Resolution (ICDR) does not have a local office in Benin.

3.6 Agreement entered into with local offices of international arbitration institutions

There is no agreement concluded with the local offices of international arbitration institutions.

Arbitration agreements are determined by the above texts on arbitration (see Sections 2.1, 2.3 and 2.4).

4.1 Requirements as to content and form

Article 3-1 of the revised AUA provides that the arbitration agreement takes the form of an arbitration clause or a compromise. It states that the arbitration agreement must be made in writing or in any means allowing proof thereof to be provided, in particular by reference to a document stipulating the agreement.

4.2 Validity of arbitration agreements

Article 4 of the revised AUA provides that “the arbitration agreement is independent of the main contract. Its validity is not affected by the nullity of this contract and it is assessed according to the common will of the parties, without necessary reference to state law.”

4.3 Special formalities

As long as the arbitration clause is included in the contract, there are no special formalities for the implementation of that arbitration clause.

4.4 Governing law

The following law governs the arbitration agreement:

• The OHADA Treaty.
• The revised AUA.
• The Arbitration Rules of the CCJA.
• Law No. 2020-02 of March 20, 2020, relating to the investment code of Benin, in Article 45, paragraph 3.
• Code of Civil, Commercial, Social, Administrative and Accounting Procedure.

Arbitrability refers to the ability of a dispute to be resolved by arbitration rather than by a state court, based on national laws and legal criteria.

5.1 Applicable restrictions

Article 13 of the revised AUA contains provisions relating to:

• The incompetence of national courts where there is an arbitration clause in a contract.
• The competence of the state court for provisional or protective measures provided that these measures do not involve an examination of the dispute on the merits.

Arbitration agreements apply in Benin without any restriction.

6.1 Stay of proceedings

Article 28 of the revised AUA provides that “unless provisional enforcement of the award has been ordered by the arbitral tribunal, the exercise of the annulment remedy suspends enforcement until the competent court in the State Party or the Common Court of Justice and Arbitration, as the case may be, has ruled.”

6.2 Anti-suit injunctions

Article 23 of the OHADA Treaty provides that “Any court of a State Party seized of a dispute which the parties had agreed to submit to arbitration shall declare itself incompetent if one of the parties so requests, and shall refer, where appropriate, to the arbitration procedure provided for in this Treaty.”

Article 13 of the revised AUA provides that “where a dispute that is the subject of an arbitral procedure under an arbitration agreement is brought before a state court, the latter must, if one of the parties so requests, declare itself incompetent. If the arbitral tribunal has not yet been seized or if no request for arbitration has been made, the state court must also declare itself incompetent unless the arbitration agreement is manifestly void or manifestly inapplicable to the case in question.”

Article 5 of the revised AUA provides that “the arbitrator’s mission may only be entrusted to a natural person. The tribunal shall consist of either one (1) arbitrator or three (3) arbitrators. In the absence of agreement between the parties, the tribunal shall consist of a sole arbitrator.”

7.1 Restrictions on the parties’ freedom to choose arbitrators

Article 6 of the revised AUA provides for the freedom of the parties to choose the arbitrators. The state jurisdiction intervenes in the appointment of the arbitrator only in the event of failure of a party to appoint its arbitrator within 30 days or in the event of disagreement between the parties on the appointment of the president of the arbitral tribunal.

Article 3.1 of the Arbitration Rules of the CCJA concerns the appointment of arbitrators and provides that “the dispute may be decided by a sole arbitrator or by three arbitrators”.

7.2 Requirement of arbitrator independence and impartiality

Article 7, paragraphs 3 and 4 of the revised AUA provides that “the arbitrator must have full exercise of his civil rights and remain independent and impartial vis-à-vis the parties. Any prospective arbitrator shall inform the parties of any circumstance likely to create in their minds a legitimate doubt as to his independence and impartiality and may only accept his mission with their unanimous and written agreement.”

Article 4.1 of the Arbitration Rules of the CCJA states that “any arbitrator appointed or confirmed by the Court must be and remain independent of the parties involved.

7.3 Mandatory rules applicable to the appointment process

Article 6, paragraph 1 of the revised AUA provides: “Arbitrators shall be appointed, revoked or replaced in accordance with the agreement of the parties.”

7.4 Appointment mechanism in the absence of party agreement or applicable institutional rules

Article 6 of the revised AUA relevantly provides that:

... Failing agreement by the parties on the appointment procedure:

a) in the case of arbitration by three (3) arbitrators, each party shall appoint one arbitrator and the two (2) arbitrators so appointed shall select the third arbitrator; if a party fails to appoint an arbitrator within thirty (30) days of receipt of a request to that effect or if the two arbitrators fail to agree on the choice of the third arbitrator within thirty (30) days of their appointment, the appointment shall be made, at the request of a party, by the competent court in the State Party.

b) in the case of arbitration by a sole arbitrator, if the parties cannot agree on the choice of the arbitrator, the latter shall be appointed, at the request of a party, by the competent court in the State Party. The decision to appoint an arbitrator by the competent court shall be made within fifteen (15) days of its referral, unless the legislation of the State Party provides for a shorter period. This decision shall not be subject to any appeal.

7.5 Mandatory rules applicable to the replacement process

Article 6, paragraph 1 of the revised AUA provides that: “Arbitrators shall be replaced in accordance with the agreement of the parties.”

Article 8, paragraph 5 of the revised AUA provides that: “When the mandate of an arbitrator is terminated or when the arbitrator withdraws for any other reason, a replacement arbitrator shall be appointed in accordance with the rules applicable to the appointment of the replaced arbitrator, unless otherwise agreed by the parties. The same shall apply when the arbitrator’s mandate is revoked by agreement of the parties and in any other case where his mandate is terminated.”

Articles 4.3 and 4.4 of the Arbitration Rules of the CCJA set out when an arbitrator will be replaced.

7.6 Mandatory disclosure obligations

The OHADA Treaty and the revised AUA do not provide for mandatory disclosure.

7.7 Grounds for challenge

Article 8, paragraphs 3 and 4 of the revised AUA provide that:

Any cause for challenge must be raised within a period not exceeding thirty (30) days from the discovery of the fact giving rise to the challenge by the party intending to rely on it.

The challenge of an arbitrator is only admissible for a reason revealed after his appointment.

Article 4.2 of the Arbitration Rules of the CCJA provides that:

The request for disqualification, based on an allegation of lack of independence or on any other grounds, shall be introduced by sending to the Secretary-General of the Court a declaration specifying the facts and circumstances on which this request is based.

This request must be sent by the party, under penalty of foreclosure, either within thirty (30) days following the receipt by the latter of the notification of the appointment or confirmation of the arbitrator by the Court, or within thirty (30) days following the date on which the party introducing the disqualification was informed of the facts and circumstances that it invokes in support of its request for disqualification, if this date is subsequent to the receipt of the aforementioned notification.

The Court shall rule on the admissibility, at the same time as, if necessary, on the merits of the request for disqualification, after the Secretary General of the Court has given the arbitrator concerned, the parties and the other members of the arbitral tribunal, if any, the opportunity to present their observations in writing within an appropriate time limit.

7.8 Mandatory rules governing the challenge of arbitrators

Article 8, paragraphs 1 and 2 of the revised AUA provide that:

In case of disagreement, and if the parties have not agreed on the challenge procedure, the competent jurisdiction in the Member State shall decide the challenge no later than thirty (30) days, after the parties and the arbitrator have been heard or duly summoned. If the competent jurisdiction fails to render a decision within this above-mentioned time period, it shall be discharged, and the challenge application may be brought before the Common Court of Justice and Arbitration by the most diligent party.

The decision of the competent jurisdiction dismissing the challenge application may only be challenged before the Common Court of Justice and Arbitration.

Article 4.2 of the Arbitration Rules of the CCJA governs the process for challenging arbitrators (see above, Section 7.7).

7.9 Removal

The OHADA Treaty and the revised AUA do not provide for abolition of the right of arbitration concerning the arbitration court.

7.10 Liability and immunity of arbitrators

Article 49 of the OHADA Treaty provides that “OHADA officials and employees, judges of the Common Court of Justice and Arbitration (CCJA) and arbitrators appointed or confirmed by the latter shall enjoy diplomatic privileges and immunities in the exercise of their functions.” This text only applies to arbitrators appointed and confirmed by the CCJA. The state parties to the OHADA Treaty wanted to extend to arbitrators the benefit of diplomatic immunities, which can only operate for the duration of the exercise of their functions as arbitrators in a case because, not being officials or employees of OHADA, these immunities cannot be permanent. The consequence of Article 49, paragraph 1 of the OHADA Treaty is that the diplomatic immunity of a CCJA arbitrator ceases with the end of the procedure in a case in which he sits as arbitrator. Any legal proceedings may therefore be brought against him, including actions for liability of a party to the dispute.

The assistance of the State courts is defined in Article 13 of the revised AUA and Article 10-1 of the CCJA Arbitration Rules.

8.1 Interim measures

8.1.1 Overview of interim measures

Article 10-1 of the CCJA Arbitration Rules provides that “unless otherwise stipulated, the arbitration agreement gives jurisdiction to the arbitral tribunal to rule on any provisional or conservatory request during the course of the arbitral proceedings with the exception of requests relating to judicial securities and conservatory seizures.”

The arbitration court does not have jurisdiction to hear claims relating to suretyships and protective seizures of debts and tangible movable property.

8.1.2 Relevance of availability of emergency arbitrator mechanism

Unlike Article 29 of the Rules of Arbitration of the International Chamber of Commerce (ICC), which provides for emergency arbitration, the OHADA Treaty, the revised AUA and the CCJA Arbitration Rules have not provided for an emergency arbitration mechanism.

8.2 Taking of evidence

Article 19.1 of the CCJA Arbitration Rules provides that “the arbitral tribunal shall hear the case as soon as possible by all appropriate means. After examining the written submissions of the parties and the documents submitted by them to the proceedings... (...) the arbitral tribunal may invite the parties to submit to it the evidence it considers necessary to resolve the dispute by all appropriate means and may hear the parties at their request or ex officio. It may request explanations and evidence deemed necessary, the admissibility and force of which it shall decide.”

8.3 Appointment or challenge of arbitrators

The appointment or challenge of arbitrators is governed by Articles 3 and 4 of the CCJA Arbitration Rules and Article 8, paragraphs 1 and 2 of the revised AUA (see above, Section 7).

The designation or disqualification of the arbitrator under the OHADA Treaty text is made in accordance with the agreement of the parties.

8.4 Other available assistance

No comment.

9.1 Domestic scope of sovereign immunity from jurisdiction

Sovereign immunity from jurisdiction is a tool designed to protect the sovereignty and independence of states by avoiding the prosecution of their agents before foreign courts.

Benin has ratified the United Nations Convention on Jurisdictional Immunities of States and their Property, adopted by the United Nations General Assembly on December 2, 2004, through Law No. 2019-34 of March 27, 2020.

9.2 Immunity from execution

Article 30 of the Uniform Act on the Organization of Simplified Recovery Procedures and Enforcement Means (AUPSRVE) provides that: “Forced execution and protective measures are not applicable to persons who benefit from immunity from execution.”

Persons enjoying immunity from execution are:

• legal entities under public law; and
• public companies with a share capital, provided that they hold the controlling majority.

Article 15 of the CCJA Arbitration Rules provides for the Procedural Framework Report.

Articles 16 and 17 of the CCJA Arbitration Rules provide for the rules applicable to the procedure and the law applicable to the merits.

Article 14 of the CCJA Arbitration Rules provides for confidentiality of the procedure.

An arbitral award is the decision made by an arbitral tribunal to resolve the dispute between the parties.

12.1 Requirements as to content and form

The requirements relating to the content and form of the arbitral award are contained in the provisions of Article 20 of the revised AUA, which provides:

In addition to the operative part, the arbitral award must contain the indication:

a) the name and first name(s) of the arbitrator(s) who made it;

(b) of its date;

(c) the seat of the arbitral tribunal;

(d) the names, first names and business names of the parties, as well as their domicile or registered office;

(e) where applicable, the names and first names of the counsel or any person having represented or assisted the parties;

(f) the statement of the respective claims of the parties, their arguments and the stages of the procedure (...).

12.2 Time limit

The time limit for rendering the arbitral award is six months from the day on which the last of the arbitrators accepted it. The arbitration period, whether legal or conventional, may be extended either by agreement of the parties or at the request of one of them or of the arbitral tribunal, by the competent jurisdiction in the State Party (Article 12 of the revised AUA).

12.3 Remedies

The following provisions are relevant in relation to remedies:

• Article 25 of the revised AUA, which provides for an action for annulment brought before the competent court in the State Party within one month of service of the award with the exequatur.
• Article 32 of the CCJA regulations, which provides for possible appeal for review due to the discovery of a fact likely to have a decisive influence and which was unknown to the arbitral tribunal.
• Article 1170 of the Code of Civil, Commercial, Social, Administrative and Accounting Procedure, which provides that “the action for annulment provided for in Article 25, paragraph 2 of the Uniform Act relating to the law of arbitration is brought before the Court of Appeal of the seat of the arbitration by way of summons.”

13.1 Interpretation and correction of awards

Article 22 of the revised AUA provides that “the arbitral tribunal shall have the power to interpret the award or to rectify material errors and omissions affecting it.”

13.2 Challenge of an award

See above, Section 12.3.

13.3 Recognition and enforcement procedures

This is provided for by the provisions of Articles 30 to 32 of the revised AUA and by Articles 1159 to 1166 of the Code of Civil, Commercial, Social, Administrative and Accounting Procedure (Article 34 of the revised AUA).

13.4 Cost of enforcement

The AUA is silent on the cost of execution.

13.5 Enforcement of orders of emergency arbitrators

As mentioned above, an emergency arbitration procedure does not exist in OHADA Treaty texts (see above, Section 8.1.2).

14.1 Process for enforcing New York Convention awards

Awards of the New York Convention are enforceable in Benin in accordance with the forms provided for in Articles 1159 to 1166 of the Code of Civil, Commercial, Social, Administrative and Accounting Procedure (Article 34 of the revised AUA).

Beninese courts grant exequatur to national or international arbitral awards, for example, Order No. 011/21/CPP1/TCC of the Cotonou Commercial Court issued on December 13, 2021.

14.2 Grounds for resisting enforcement of New York Convention awards

There are no grounds for resistance to the enforcement of arbitral awards.

If the execution of the award is contrary to public policy, execution may be refused.

14.3 Enforcing non-Convention awards

Article 3 of the revised AUA provides that “The arbitration may be based on an arbitration agreement or on an instrument relating to investments, in particular an investment code or a bilateral or multilateral treaty relating to investments.”

Article 33 of the revised AUA provides that all awards are recognized and enforced in the State Parties provided that they comply with the requirements of Articles 1159 to 1166 of the Code of Civil, Commercial, Social, Administrative and Accounting Procedure.

15.1 Applicable to counsel

Lawyers in the West African Economic and Monetary Union (UEMOA) area are subject to the Code of Ethics of Lawyers in the UEMOA area, which came into force on July 5, 2019.

Article 23, paragraph 2 of the CCJA Rules of Procedure provides that “a lawyer whose conduct before the Court is incompatible with the dignity of the Court may be excluded from the proceedings at any time by order of the President of the Court. This order shall be immediately enforceable.”

15.2 Applicable to arbitrators

See Section 7.2.

The arbitration procedure is financed by the parties. However, sometimes one of the parties may call upon a third-party organization to advance the funds.

16.1 Applicable regulatory requirements

There are no applicable regulatory requirements for third-party funding in arbitration matters in Benin.

16.2 Overview of the third-party funding market

No observation.

17.1 Types of specialist arbitration

The OHADA Treaty texts relating to arbitration do not distinguish between specialized arbitration types.

17.2 Key legal principles

No observation.

17.3 Types of claim and defences typically brought in that area

A classic claim typically brought is for debt recovery or damages for contractual non-performance.

17.4 Issues and strategic considerations to take note of

No observation.

Arbitration is undergoing great development in Benin.

In December 2022, CAMeC BENIN, Arbitration Center, Organ of the Chamber of Commerce and Industry of Benin published the first Collection of Arbitration Awards of CAMeC-BENIN.