Côte d'Ivoire

In the jurisdiction of Abidjan, commercial disputes are brought before the Abidjan Commercial Court (TCA). The court is organised according to the mixed panel system, combining professional judges and non-professional judges from the business community.

Outside that jurisdiction, commercial disputes are brought before ordinary courts known as Courts of First Instance (TPI). The TPI rule on commercial matters, with panels composed exclusively of professional career judges.

In both cases, the presiding judge may rule alone in summary proceedings and for urgent or provisional measures.

On appeal, decisions of the TCA fall under the jurisdiction of the Abidjan Commercial Court of Appeal, which uses a mixed panel system. TPI rulings can be appealed before the ordinary courts of appeal, which have panels of professional judges only.

As a rule, the Common Court of Justice and Arbitration (CCJA) is the court of cassation in commercial matters. It has exclusive final jurisdiction, excluding national courts for any dispute relating to OHADA (Organisation pour l’harmonisation en Afrique du droit des affaires) law. However, where no complaint is raised with regard to the application or interpretation of OHADA law, only the national high court has jurisdiction to hear appeals in cassation.

Proceedings are generally written and expedited; evidence is mainly written (contracts, invoices, correspondence). The court is most often seised by summons, but also by voluntary appearance or joint application. Preliminary conciliation can sometimes be required legally before examination of the merits of the case; if it fails, the case is heard. The adversarial principle applies: each party submits only the documents on which it relies, without any general disclosure obligation. Judgments are rendered publicly and may be accompanied by provisional enforcement, and available remedies include appeal before courts of appeal, then before the CCJA or the High Court, depending on the nature of the grievance.

Before seising the court, several mandatory legal conditions must be met, failing which the action will be inadmissible:

• Jurisdiction of the court. Verification that the seised court has jurisdiction over commercial matters.
• Mandatory attempt at amicable settlement. Where required failure to undertake amicable steps results in dismissal of the action.
• Admissibility of the action. The claimant must demonstrate their interest, standing to sue, and capacity to act. The claimant must ensure that the defendant has legal capacity.
• Limitation periods. Ensuring that the action is brought within the applicable statutory time limits.
• Documentary evidence. Availability of sufficient evidence to support the claim.
• Contractual clauses. Review of clauses providing for arbitration, mediation or the jurisdiction of a specific court.
• Procedural costs and risks. Assessment of costs, timeframes and litigation risks.

Major commercial disputes are mainly resolved through ADR methods such as: arbitration, widely used for complex or international cases and governed by the Uniform Arbitration Act and the New York Convention; mediation and conciliation, which promote amicable and legally binding solutions that are often certified as enforceable; and transactional negotiation, which allows parties to end the dispute through a contractual agreement while preserving their commercial relationship.

In Côte d’Ivoire, the law provides for a mandatory three-month period from the first hearing to render judgment from the first hearing. By contrast, complex cases or those requiring expert opinions may require a longer period before being adjudicated.

Each party is required to disclose only the documents on which it relies to support its claims or defence (contracts, invoices, purchase orders, correspondence, accounting documents). There is no obligation to spontaneously disclose irrelevant or adverse documents.

Witnesses are generally not required to attend hearings, as proceedings are documentary in nature. They rely on documents rather than oral testimony. However, the judge may order an investigation and summon witnesses by official summons.

In matters of court costs, the general rule is that the unsuccessful party is ordered to bear the costs, pursuant. However, the court has a power of derogation granting it broad discretion in the allocation of costs. It may decide to leave all or part of the costs to the other party. The exercise of this power is not automatic and must be the subject of a special and expressly reasoned decision. Regarding the amount, it is rather the law that stipulates the fees for legal proceedings and the expenses that may be included in the costs, so that judges merely note the amount on the basis of supporting documents.

Commercial litigation often requires a rapid response to preserve rights. Ivorian law and OHADA law provide a comprehensive range of measures.

Summary proceedings (national law)

The President of the Commercial Court acts as the summary judge.

• Conditions: urgency and absence of serious objection.
• Interim payment order (référé-provision): the judge may grant a provisional payment (partial or total) to the creditor where the existence of the debt is not seriously disputable (e.g. certified invoice, unpaid cheque).
• Pre-trial investigative measures (in futurum): these allow the court to order an expert appraisal or findings before any proceedings on the merits in order to preserve evidence.
• Restorative summary order: this is used to put an end to a manifestly unlawful disturbance (e.g. ordering the reopening of commercial premises unlawfully closed by a landlord).

Conservatory measures (OHADA law)

Governed by the OHADA Uniform Act on Enforcement Proceedings, conservatory measures include:

• Conservatory attachment of receivables: freezing of the debtor’s bank accounts.
• Conservatory attachment of tangible movable property: seizure of stock, vehicles and equipment.

The OHADA Uniform Arbitration Act is the arbitration law applicable in the 17 OHADA member states. Where OHADA law does not apply (seat of arbitration outside an OHADA state), national procedural law applies. The regime is closely aligned with the UNCITRAL Model Law.

Yes, where provided for in the arbitration agreement or rules. Under OHADA law, the arbitral tribunal has the power to order any interim or protective measure it deems necessary to preserve the rights of the parties or evidence (e.g. provisional prohibition of an act, preservation of assets, deposit of sums, protection of evidence). These measures must not prejudge the merits of the dispute. However, their enforcement may require the intervention of the competent state court.

An arbitral award may be challenged before a state court only through an action for annulment, on limited grounds: lack of jurisdiction of the arbitral tribunal, procedural irregularities affecting the rights of the parties, violation of public policy, incapacity or absence of consent of a party, or invalidity of the arbitration agreement. Outside these cases, the award is final and binding.

Côte d’Ivoire is widely integrated into international enforcement frameworks.

Enforcement of arbitral awards

• New York Convention (1958): accession on 1 February 1991, entry into force on 1 May 1991.
• Washington Convention (ICSID): ratified in 1966 for investment disputes.
• OHADA Treaty: multilateral framework among 17 member states.

Enforcement of foreign judgments

• Judicial Cooperation Agreement between France and Côte d’Ivoire (24 April 1961).
• Regional judicial cooperation conventions with Burkina Faso, Mali and Senegal.

Commercial judgments enforcement can also be based on bilateral agreements or the principle of reciprocity.

Judgments imposing obligations are enforceable, in particular, final judgments on the merits, judgments with provisional enforcement, summary judgments and orders on application, which are immediately enforceable. Arbitral awards are also enforceable after exequatur, or directly where provided by special legislation. By contrast, interlocutory judgments, purely declaratory decisions, judgments subject to suspensive appeal without provisional enforcement, or decisions annulled or contrary to public policy are excluded from enforcement.

Foreign judgments — common law exequatur

For countries without bilateral agreements, the procedure is governed by the Civil Procedure Code.

• Seising of the court: summons before the Court of First Instance (or Commercial Court) of the defendant’s domicile or place of enforcement.
• Review (without review of the merits). The judge verifies:
  • jurisdiction of the foreign court;
  • regularity of the procedure;
  • application of the applicable law;
  • international public policy; and
  • reciprocity.
• Decision: judgment granting or refusing exequatur.

Arbitral awards — OHADA regime

Arbitral awards are governed by Articles 30 to 34 of the OHADA Uniform Arbitration Act.

• Seising: application (non-adversarial procedure) to the president of the competent court.
• Limited review: verification of the existence of the award and that it is not manifestly contrary to international public policy.
• Time limit: if the judge does not rule within 15 days, the award is deemed enforceable.
• Remedy: refusal of exequatur may be challenged before the CCJA.

Once a foreign judgment or arbitral award has been declared enforceable in Côte d’Ivoire by exequatur, it may be enforced by several means: seizure of movable property; seizure and sale; seizure of immovable property; wage or income garnishment; injunctions to do or refrain from doing something; and seizure of securities or transferable instruments. Bailiffs implement these measures in accordance with the Code of Civil Procedure and OHADA law provisions. Enforcement costs are, in principle, borne by the debtor.

Before obtaining a final enforceable title, the creditor may apply for conservatory attachments (Articles 54 et seq., Uniform Act on the Organisation of Simplified Recovery Procedures and Enforcement Measures (AUPSRVE)).

• Conditions: proof of a claim appearing well-founded, in principle, and circumstances threatening recovery.
• Effect: assets become unavailable but are not transferred to the creditor.
• Conversion: once an enforceable title is obtained, the conservatory attachment is converted into attachment-attribution or attachment-sale.

Proceeding on the assumptions outlined in the Model Answer, would a court in this jurisdiction recognise and enforce the arbitral award under the New York Convention?

In particular:

• Does the award fall within the scope of Article V(1) of the Convention, or would any of the grounds in Article V(1) justify refusal on the assumed facts?
• Is the subject matter of the dispute capable of settlement by arbitration under domestic law for the purposes of Article V(2)(a)?
• Would recognition or enforcement of the award be contrary to public policy within the meaning of Article V(2)(b)?

Response

From an enforcement perspective, Ivorian courts would apply OHADA law and consider the arbitration clause valid in so far as it relates solely to the financial terms of execution of a final judgment, without calling into question res judicata. The arbitral award, limited to verifying the finality of the judicial decision and determining payment, interest and guarantees, would not violate public policy or jurisdictional rules. When requested to grant exequatur, the judge would exercise limited control, without examining the merits, and would grant exequatur, allowing enforcement of the award in accordance with the AUPSRVE.