The New OHADA Uniform Act introduces significant innovations and modifications across its provisions, particularly in Books I and II. These changes focus on recovery procedures, immunity of execution, and the classification of goods that can or cannot be attached (alienable and inalienable). This article outlines these modifications, structured into three main categories:
Modifications to Recovery Procedures (A)
Modifications to Immunity of Execution (B)
Modifications Relating to Goods Subject to Attachment (C)
Modifications to Recovery Procedures
Expanded Scope of Debts (Article 2):
The New Uniform Act includes endorsements and guarantees as recoverable debts under the simplified recovery procedure.
Endorsements, as defined under CEMAC Regulation No. 03/16-CEMAC-UMAC-CM, relate to negotiable instruments and their validity conditions.
Guarantees are classified into Suretyships (for individuals) and Independent Guarantees (for companies) as per the 2010 OHADA Uniform Act on Securities (Articles 12–49).
Delegation of Judicial Authority (Article 5):
The President of the court may now delegate a judge to rule on applications.
Obligations to issue decisions within three days and to provide reasoning for rejection decisions are now mandatory.
Reduced Opposition Timeframe (Article 8):
The opposition filing deadline has been reduced from 15 to 10 days.
Courts can declare bailiff notifications void if mandatory provisions are not followed.
Separate Judges for Conciliation and Hearing (Article 12):
Conciliation proceedings must be conducted by a judge different from the one presiding over the hearing.
Conciliation must conclude within 15 days, with failure potentially affecting subsequent proceedings.
Time Limits for Appeals and Execution (Article 15):
Appeals must now be filed within 15 days (reduced from 30 days), and they stay execution unless provisional execution is ordered.
Trial courts must transmit appeal files within 10 days, and appellate courts must decide within two months.
Additional Procedural Modifications:
Article 16: Provides for discontinuance of opposition, with decisions rendered within 15 days and process servers included as parties to the proceedings.
Article 17: Allows the President to issue injunctions for affixing the executory formula if registrars refuse.
Electronic Registers (Article 18): Facilitates maintaining injunction records electronically with guaranteed accessibility and reliability.
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Modifications to Immunity of Execution
The New Uniform Act addresses the challenges posed by absolute immunity under the 1998 provisions, providing a balanced framework for creditors and investors:
Express Waiver of Immunity (Articles 30–30-3):
Entities benefiting from immunity of execution can now explicitly waive it in contracts.
Waivers must be clear, unambiguous, and in writing.
Alignment with Public Policy:
While the waiver of immunity provides relief for creditors, its enforcement must still align with public policy considerations.
Modifications Relating to Goods Subject to Attachment
Goods Exempt from Attachment (Article 51):
The New Uniform Act catalogs exempt items, including:\n\n – Court-awarded maintenance allowances.
Inalienable goods under national laws.
Essential items for livelihood and professional activities.
Funds in central bank accounts of banks and credit institutions.
Clarification of Inalienability:
Disputes such as Bestcam vs. MTN Cameroon highlight the importance of clarity in this provision. For instance, mobile money guarantee accounts are deemed inalienable under CEMAC regulations.
Judicial Precedents:
The CCJA (Judgment No. 043/2018, February 22, 2018) reinforced the inalienability of certain bank accounts, offering precedent for future cases.
Conclusion
The New Uniform Act introduces substantial reforms aimed at improving recovery processes, balancing immunity provisions, and clarifying attachment rules. These changes reflect a progressive approach to addressing practical challenges and ensuring fair application of the law. Stakeholders must remain vigilant to regulatory updates and judicial interpretations to navigate this evolving legal landscape effectively.
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