Arbitration and mediation are alternative dispute resolution mechanisms in the business environment. It should be noted that state courts are gradually giving way to these methods for traders and private individuals engaged in profit-making activities. Businesspeople generally dislike exposing the details and secrets of their undertakings in public or to individuals unfamiliar with their industries. Court decisions often fail to take into account their hard work and are sometimes too slow, while the business world requires speed.

In both arbitration and mediation, the parties may choose men and women capable of forming the private tribunal to settle the dispute between them. Typically, each party selects one arbitrator (not necessarily a lawyer), and the third arbitrator is appointed by the two chosen arbitrators. To make this possible, the parties must include such an agreement in an arbitration clause. In this way, the dispute completely escapes the control of the state courts, even if jurisdiction has been granted to them by national law. Case law on this matter is abundant.

These alternative dispute resolution mechanisms are less costly, less stressful, and faster. However, neither arbitration nor mediation can deal with criminal matters, as these fall exclusively under public order and must be judged by state courts without exception.

Within the OHADA framework, the Uniform Act on Arbitration, signed in Conakry on November 23, 2017, governs issues ranging from referral to enforcement of arbitral awards through an exequatur decision rendered by the competent court of an OHADA member state (Article 30 UAA). Such a decision may only be challenged by way of appeal in cassation before the Common Court of Justice and Arbitration (Article 32 UAA).

Similarly, the Uniform Act on Mediation, also signed in Conakry on April 23, 2017, provides in Article 2 that it does not apply to cases already brought before a state judge or arbitrator who is in the process of resolving the dispute. Unlike an arbitrator, who may render a decision without consulting the parties, a mediator’s room for maneuver is very limited. Although the mediator may act in the face of the parties’ misconduct, he or she must do everything possible to gather the views of both parties. The mediator may, however, make settlement proposals during the procedure. The dispute is resolved by a written agreement, which is binding on the parties and may be subject to enforcement (Article 16 UAM).

Outside the OHADA space, other forms of international arbitration exist, such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on June 10, 1958 (in force since June 7, 1959), as well as ad hoc arbitration (where no established arbitral institution administers the process, and the parties themselves set up an arbitral tribunal).

We spare no effort in providing diligent legal support to our clients who wish to resort either to arbitration or mediation.