Arbitration is an important mechanism for resolving disputes in the Democratic Republic of the Congo. The Democratic Republic of the Congo has a history of political instability, armed conflicts, and internal strife. In this context, arbitration can provide a stable, neutral, and efficient means of resolving disputes between parties. As a vast (the eleventh-largest country in the world) developing country with abundant natural resources, the Democratic Republic of the Congo relies on foreign investment to spur economic growth and development. Arbitration can be an attractive option for foreign investors because it offers a more predictable and impartial dispute resolution process compared to local courts, which might be perceived as biased or inefficient.
While parties to a contract involving entities in the Democratic Republic of the Congo at times choose a foreign seat of arbitration, the laws applicable to arbitration in the Democratic Republic of the Congo are sound. Arbitration in the Democratic Republic of the Congo is governed by two sets of regulations: the revised Uniform Act on Arbitration (the “Uniform Act”) adopted by the Council of Ministers of the Organization for the Harmonization of Business Law in Africa (“OHADA”) dated 23 November 2017 and Articles 159 to 194 of the Code of Civil Procedure.
The Uniform Act applies to arbitrations that are seated in the OHADA Member States (Article 1), i.e., Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Congo, Cote d’Ivoire, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, Democratic Republic of the Congo, Senegal, Chad, and Togo.
We will address several main features of the arbitration regime in the following paragraphs.
Form of the Arbitration Agreement
According to Article 3.1 of the Uniform Act, the arbitration agreement may take two forms: either an arbitration clause or a submission agreement (compromis). The main difference between these two forms is that the arbitration clause is an agreement via which the parties commit to submit to arbitration a dispute that may arise between them in the future, whereas the compromis is an agreement via which the parties submit to arbitration a dispute that has already arisen. Article 3 of the Uniform Act further stipulates that the arbitration agreement must be in writing or any other form that can evidence it, in particular by reference to a document containing an arbitration clause.
The Code of Civil Procedure also distinguishes between an arbitration clause (Article 160) and a submission agreement (Article 164). They both need to be in writing (Article 164).
Composition of the Arbitral Tribunal
Article 8 of the Uniform Act stipulates that the arbitral tribunal shall be composed of either a sole arbitrator or a panel of three arbitrators.
The appointment of the arbitral tribunal is, pursuant to Article 5 of the Uniform Act, a matter that is primarily governed by the agreement of the parties. If such an agreement has not been reached, the appointment is made in the following manner:
- For a panel of three arbitrators, each party elects its arbitrator, and the two arbitrators then appoint the chair of the tribunal. Should a party fail to appoint an arbitrator within 30 days as of the request to do so by the other party, the appointment shall be made by the competent judge in the OHADA State where the arbitration is seated.
- For a sole arbitrator, again, his or her appointment is made by joint agreement between the parties. If the parties fail to do so, the sole arbitrator is appointed by the competent judge.
In accordance with Article 20 of the Uniform Act, the arbitral award must contain a number of mandatory terms:
- the full names of the arbitrators who rendered it;
- the date of the award;
- the seat of the arbitral tribunal;
- the full names of the parties as well as their residence or registered office;
- where applicable, the full names of counsel or any person who represented or assisted the parties; and
- a summary of the respective claims and defences made by the parties, their submissions, as well as the stages of the procedure.
The award shall also state the reasons upon which it was based (Article 21) and must be signed by the arbitral tribunal (Article 22).
Pursuant to Article 23 of the Uniform Act, as of its rendering, the award has res judicata effect regarding the dispute which is decided.
Setting Aside of Arbitral Awards in the Democratic Republic of the Congo
Under the Uniform Act, the award is not subject to any opposition or appeal (Article 25).
It may be subject only to annulment proceedings swiftly raised before the competent judge in the OHADA State where the arbitration is seated. However, the parties are entitled to waive their right to annulment of the arbitral award, if such a waiver is not contrary to international public order.
The competent judge is required to rule upon the annulment application within three months as of its submission (Article 27). If the competent court fails to do so, the annulment application may be submitted to the Common Court of Justice and Arbitration (“CCJA”) within the 15 following days. The CCJA is then required to rule on the application within six months (Article 27).
Under Article 26 of the Uniform Act, the application for annulment of the award is admissible only in the following limited cases:
- if the arbitral tribunal ruled without an arbitration agreement or on the basis of a void or expired arbitration agreement;
- if the arbitral tribunal was improperly appointed;
- if the arbitral tribunal ruled outside of its mandate;
- if the principle of due process was not respected;
- if the arbitral award is contrary to the principles of international public order; or
- if the arbitral award does not state at all its reasons.
According to Article 28 of the Uniform Act, annulment proceedings suspend the enforcement of the arbitral award.
Recognition of Foreign Arbitral Awards in the Democratic Republic of the Congo
Pursuant to Article 30 of the Uniform Act, in order to enforce an arbitral award in the OHADA States, including the Democratic Republic of the Congo, the arbitral award must be subject to a recognition decision (exequatur) rendered by a competent court. The recognition of the arbitral award may be refused if the award is manifestly contrary to the principles of international public order (Article 31).
According to Article 32 of the Uniform Act, the decision granting exequatur of the arbitral award is not subject to any appeal or remedy. Instead, the decision refusing exequatur of the arbitral award is subject to a pourvoi en cassation with the CCJA.
In turn, the Code of Civil Procedure provides in Article 184 that an arbitral tribunal may be enforced in the territory of the Democratic Republic of the Congo only by an enforcement order rendered by the president of the competent court. Pursuant to Article 185, such an order is subject to appeal.
The Democratic Republic of the Congo is also a contracting State to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which regulates the enforcement of foreign awards in its territory.
Investment Arbitration and the Democratic Republic of the Congo
Pursuant to Article 3 of the Uniform Act, arbitration may be based on an investment protection-related instrument, such as a bilateral or multilateral treaty or an investment code.
The Democratic Republic of the Congo has also signed several bilateral investment treaties and also adopted an investment code in 2002, allowing for arbitration.
It is unsurprising that the Democratic Republic of the Congo has also been involved in several investment arbitrations. These include:
- African Holding Company of America, Inc. and Société Africaine de Construction au Congo S.A.R.L. v. Democratic Republic of the Congo (ICSID Case No. ARB/05/21);
- Patrick Mitchell v. Democratic Republic of the Congo (ICSID Case No. ARB/99/7);
- Banro American Resources, Inc. and Société Aurifère du Kivu et du Maniema S.A.R.L. v. Democratic Republic of the Congo (ICSID Case No. ARB/98/7).
In conclusion, arbitration plays an important role in the Democratic Republic of the Congo, providing an impartial, efficient, and stable dispute resolution mechanism in a country with a history of political instability and internal conflicts. The Democratic Republic of the Congo’s arbitration regime provides a solid legal framework for arbitration proceedings. Foreign investors can benefit from the predictability and neutrality offered by arbitration compared to local courts, which may be perceived as biased or inefficient. Moreover, the country has engaged in several investment arbitrations, highlighting its commitment to a fair dispute resolution process for foreign investors.