Bibliographie sélective OHADA

2008年5月1日《中华人民共和国劳动争议调解仲裁法》正式施行，结合我国目前劳动争议处理机制的特点，创设性地设立了劳动争议一裁终局制度。该制度的设立是为了缩短劳动争议处理周期，减轻劳动者诉累，更好地维护劳动者的权益，这是中国首创且独有的一种制度。该制度运行已十多年，已成为劳动争议仲裁的一项重要制度，但该制度在实践运用中，暴露出许多法理及操作上的问题，阻碍了该制度的实施以及劳动仲裁功能的发挥。 The Labor Dispute Mediation and Arbitration Law of the People’s Republic of China was officially implemented on May 1, 2008. In light of the characteristics of China’s current labor dispute resolu-tion mechanism, the law innovatively established the final arbitration award system for labor dis-putes. Designed to shorten the processing cycle of labor disputes, reduce the burden of litigation on workers, and better protect workers’ rights and interests, this system is an original and unique in-stitution in China. Having been in operation for more than a decade, it has become an important mechanism in labor dispute arbitration. However, in practical application, the system has exposed numerous problems in both legal theory and operational practice, hindering its implementation and the full functioning of labor arbitration.

Long ago before the creation of the state courts, men had resorted to arbitration for the resolution of diputes. Today, based on the principle of monopoly of the state to render justice, the power to judge is given only to the state. Rendering of justice is one of the areas where the state exeercises its sovereign powers. This has made us to ask the question : is arbitration a violation of the sovereignty of the state in the domain of dispute resolution ? Arbitration is not a violation of the sovereign powers of the state because, it is not all disputes that are resolved via arbitration (for example, crimnal, tax disputes etc can not be settled via arbitration) and the state courts intervene in arbitratin when ever it is necessary. The sate courts intervene in arbitration to grant exequatur, order interim mesaures etc. Nonetheless, since OHADA legislator has not given a complete list of all disputes that can not be resolve via arbitration, we recomend that OHADA should provide a list of all disputes whcih can be settle via arbitration as it is the case with the Arbitration Act of Zimbabw. This article aims at identifying those cases that can not be settled by way of arbitration and those instances in which the state courts intervene in arbitration. Avant la création des tribunaux étatiques, les hommes ont eu recours à l'arbitrage pour la résolution des litiges. Aujourd'hui, sur la base du principe du monopole de l'État à rendre la justice, le pouvoir de juger n'est conféré qu'à l'État. Le fait de rendre la justice est l'un des domaines dans lesquels l'État exerce ses pouvoirs souverains. Cela nous a amenés à poser la question : l'arbitrage constitue-t-il une violation de la souveraineté de l'État dans le domaine du règlement des différends ? L'arbitrage n'est pas une violation des pouvoirs souverains de l'État car, d'une part, tous les litiges ne sont pas résolus par voie d'arbitrage (par exemple, les litiges pénaux, fiscaux, etc. ne peuvent pas être réglés par arbitrage) et, d'autre part, les tribunaux étatiques interviennent dans l'arbitrage chaque fois que cela est nécessaire. Les tribunaux étatiques interviennent dans l'arbitrage pour accorder l'exequatur, ordonner des mesures provisoires, etc. Néanmoins, étant donné que le législateur de l'OHADA n'a pas établi une liste exhaustive de tous les litiges qui ne peuvent pas être résolus par arbitrage, nous recommandons que l'OHADA fournisse une liste de tous les litiges qui peuvent être réglés par voie d'arbitrage, comme c'est le cas dans la loi sur l'arbitrage du Zimbabwe. Cet article vise à identifier les litiges qui ne peuvent pas être réglés par voie d'arbitrage ainsi que les situations dans lesquelles les tribunaux étatiques interviennent dans l'arbitrage.

The book asks whether the use of Artificial Intelligence (AI) and Generative AI (GenAI) in international arbitration represents a revolution or an evolution of the international dispute resolution landscape. Critically engaging with the transformative impact of the Fourth Industrial Revolution (4IR), this book focuses on the integration of AI and GenAI into international commercial arbitration. Set against the backdrop of rapid technological advancement, it explores how arbitral tribunals and stakeholders are cautiously yet progressively adopting these innovations in a manner that respects and preserves the foundational principles of arbitration. Through an interdisciplinary and practice-oriented approach, the book examines the evolving role of AI in arbitration. It analyzes how AI is perceived and applied by parties, arbitral institutions, and arbitrators, as well as assesses the legal frameworks in place to govern it. Offering a balanced analysis of both the opportunities and legal and ethical dilemmas posed by emerging technologies, the book asks if a duty of disclosure is relevant in relation to AI use, and what challenges this might entail. It also covers the status of AI-generated arbitral awards under international law, as well as copyright law. This book will be of interest to researchers in the field of international arbitration and commercial law

International business creates legal problems that do not fit neatly inside one country’s court system. Companies trade goods, share technology, build projects, and move money across borders, often with partners they may never meet in person. When a dispute happens, the main question is not only “Who is right?” but also “Where will the dispute be decided, and will the final decision be respected in other countries?” This research explains how Alternative Dispute Resolution (ADR) - in particular international commercial arbitration - answers those questions. It opens with ADR as a general concept in the sphere of international law and relates it to how the United Nations (UN) approaches peaceful dispute settlement. It then explains, in detail, arbitration: how it operates, why businesses use it, and what makes it different from court litigation. After that, the research examines the most important UN-based legal framework that applies to arbitrations, especially the New York Convention of 1958 on the recognition and enforcement of arbitral awards, and the UNCITRAL Model Law that many countries employ to structure their legislation on arbitration. It also places arbitration inside the wider world of international commercial law, including how international contract rules such as the CISG reduce legal uncertainty in cross-border trade. Finally, it identifies major gaps: uneven court attitudes, misuse of the “public policy” exception, problems with non-signatories, delay and cost, unequal bargaining power, and the challenge of handling modern disputes involving multiple parties and urgent interim relief. The research ends with practical recommendations aimed at law reform, better drafting of arbitration clauses, improved court–arbitration cooperation, and stronger ethical and procedural safeguards.

The rapid expansion of digital assets and the metaverse, powered by blockchain and other advanced technologies, presents new challenges for dispute resolution and legal frameworks. This study examines the legal landscape of digital assets, highlighting complexities in contractual obligations, ownership, and governance. As blockchain enables decentralised transactions and ownership—raising issues around security, intellectual property, and jurisdiction—traditional legal systems struggle to keep pace. This research explores blockchain’s potential to enhance dispute resolution via decentralised arbitration and smart contracts, which offer efficiency, immutability, and transparency. Approaches to digital property disputes in the metaverse are evolving, and new alternative dispute resolution (ADR) methods, including mediation, arbitration, and online dispute resolution (ODR), are emerging. Additionally, this study investigates how technologies like virtual reality and artificial intelligence (AI) reshape regulation and enforcement in the metaverse. By analysing regulatory efforts, it identifies key areas where legal frameworks can be improved to protect digital asset owners, promote innovation, and enable fair conflict resolution in a fast-changing virtual economy. Ultimately, the findings underscore the need for adaptive, forward-looking legal responses that embrace technological progress to address the metaverse’s unique challenges.

Artificial Intelligence (AI) is transforming many professional spheres, and Alternative Dispute Resolution (ADR) is not an exemption. The paper will provide the definition of ADR origin and scope and then explain the fundamental ideas of AI and its history. Next, we proceed to analyze the application of AI tools to help ADR practitioners with mediation, arbitration, case management, and predict outcomes. Through the examination of the most recent literature, industry publications, and technology review, we show how AI can be employed to facilitate the process of document analysis, suggest negotiation tactics, conduct administrative work, and estimate the result of a case. We also examine ethical and practical issues like prejudice and transparency and give some suggestions regarding the establishment of AI as a responsible resolution of disputes. The paper concludes that AI can enhance the efficiency, accessibility, and strategic insights of the process of ADR, yet it should be under close supervision of the human judgment and ethical principles to make the process fair and trustworthy.

Investor–State Dispute Settlement (ISDS) has become one of the most controversial processes of international economic law, and has straddled the nexus of foreign investment, sovereignty and development policy. Though ISDS was initially created to give its investors a sense of security and depoliticize their claims, lately it has gained critics over excess damage payments, regulatory stifling and political responsibility. The example of Pakistan, most notable in the Tethyan Copper arbitration exemplifies the disadvantages developing states suffer when signing one-sided investment treaties. The paper is a critical review of the historical developments, economic justification as well as the criticisms of ISDS using EU, U.S and Chinese experiences as a case example. It also gets involved in current reformist discussions such as the Multilateral Investment Court and the evaluations of their possible impact in terms of balancing investment protection and regulatory independence of states. The analysis outlines that it is in Pakistan interest to adopt a dual approach to the treaty modernization and institutional strengthening and also get actively involved in multilateral reform efforts in order to make ISDS consistent with the state policy of economic development and its sovereignty.

Despite being part of Australian law for more than 30 years, the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) has not secured the internationally minded interpretation that CISG art 7(1) requires. Australia’s international commercial arbitration (‘ICA’) laws, however, are routinely approached by Australian courts with an internationalist perspective, as their own interpretative rules require. It is tempting to conclude that Australia’s approach to interpreting its ICA laws is transferable to the CISG context. In this article I address a previously unexplored nuance affecting that conclusion. Australian courts routinely accept Singaporean, Hong Kong and New Zealand interpretative influence concerning ICA laws. In the CISG context, however, significantly less influence from those jurisdictions exists. That being so, I explore how Australia’s courts might better apply the CISG in an internationalist manner. First, I recommend that Australia’s courts emphasise to practitioners the need to consider the CISG’s application and its internationalist interpretation requirements. Second, I recommend that Australian courts use the amicus curiae procedure to solicit third party submissions addressing the CISG’s interpretation. Both techniques are applied by foreign courts in the ICA context and would assist Australian courts in discharging their CISG art 7(1) obligations.

From rationality to reality. The evolution of law and economics through the behavioral lens. Understanding how we choose: foundations of behavioral economics. Rethinking law through the lens of behavioral economics. Why law needs behavioral economics. The challenge of integrating behavioral economics into private law: freedom vs regulation. The double-edged sword of behavioral economics: protecting consumers from psychological manipulation. Balancing innovation and consumer rights: a global view on consumer protection in the EU, Italy and Colombia. Alternative dispute resolution and the judicial agreements. The justice system seen though behavioral economics. Judicial agreements: procedural autonomy and enhancing judicial cooperation. Alternative dispute resolution (ADR) and mediation: legal frameworks, party autonomy and behavioral economic. A brief comparative analysis on mediation: EU, Italy and Colombia. Applying behavioral economics in the ADR (mediation).

In the face of the judiciary's inability to keep pace with the electronic revolution and to provide swift means for resolving e-commerce disputes, the need has become urgent to search for more successful ways to resolve disputes and disagreements between contracting parties while simultaneously adhering to the requirements of e-commerce, which are based on speed. As a result of these efforts, electronic arbitration has emerged. Arbitration stands as an exceptional pathway for dispute resolution, stemming from mutual agreement and diverging from conventional litigation methods. Its purpose lies in resolving disputes by reaching a verdict issued by an arbitration panel, which holds comparable validity to a court ruling امام عجز القضاء عن اللحاق بالطفرة الإلكترونية وتوفير وسائل سريعة لفض منازعات التجارة الالكترونية، أصبحت الحاجة ملحة للبحث عن سبل أكثر نجاحا لفض منازعات والخلافات بين المتعاقدين مع الحفاظ في ذات الوقت على متطلبات التجارة الالكترونية القائمة على السرعة بين أطرافها، كانت نتيجة جهودها التحكيم الالكتروني. يعتبر التحكيم طريق استثنائي لفض الخصومات، مصدره الاتفاق وقوامه الخروج على طرق التقاضي العادية، من أجل فض المنازعات للوصل إلى حكم يصدر عن هيئة التحكيم، يتمتع بحجية الأمر المقضي به شأنه شأن حكم الصادر عن القضاء.

The provisions of USMCA and their interpretation and application in the developing case law of international arbitral tribunals constituted under its investment chapter show a progressive move towards a higher transparency standard in the resolution of inves-tor-State disputes. The incorporation of most of the UNCITRAL Rules on Transparen-cy in USMCA Annex 14-D expanded the scope of NAFTA’s transparency rules. The entry into force of USMCA and the recent end of NAFTA’s “legacy claims” is to bring normative uniformity across the case law of arbitral tribunals on issues of procedural transparency. In addition, better access to arbitral orders and awards under USMCA will promote the quality of the decisions, as tribunals and parties will be able to lean on the experience of their predecessors. Las disposiciones del T-MEC y su aplicación en la jurisprudencia arbitral internacional muestran un avance hacia mayores estándares de transparencia en disputas inversionista-Estado. Al incorporar la mayoría de las Reglas de Transparencia de la CNUDMI en su Anexo 14-D, el T-MEC amplió el marco del TLCAN. La entrada en vigor del T-MEC y el fin de las “reclamaciones heredadas” del TLCAN promueven una mayor uniformidad normativa en torno a la transparencia procesal. Esta coherencia fortalecerá la aceptación del capítulo de inversión del T-MEC y aumentará la legitimidad del arbitraje de inversiones a nivel global.

Artificial intelligence is revolutionizing the legal sector by automating judicial processes, enhancing efficiency, and reducing litigation time. AI-powered systems support case management, legal research, and predictive analytics, enabling judges and lawyers to make data-driven decisions. Additionally, AI is integrated into alternative dispute resolution methods, such as online mediation and arbitration, streamlining conflict resolution. However, this article concerns about transparency, accountability, and potential biases in AI-generated rulings persist. يُحدث الذكاء الاصطناعي تحولًا في القطاع القانوني من خلال أتمتة العمليات القضائية، مما يعزز الكفاءة ويقلل مدة التقاضي. تدعم الأنظمة الذكية إدارة القضايا، والبحث القانوني، والتحليلات التنبؤية، ما يساعد القضاة والمحامين في اتخاذ قرارات مستندة إلى البيانات. كما يُدمج الذكاء الاصطناعي في الوسائل البديلة لحل النزاعات، مثل الوساطة والتحكيم عبر الإنترنت، لتسريع التسوية. ورغم فوائده، تظل قضايا الشفافية والمساءلة والانحياز محل جدل، مما يستدعي تنظيمًا دقيقًا لضمان التوازن بين الابتكار والعدالة.

In Nigeria, the United Nations Convention on International Settlement Agreements Resulting from Mediation (2018) has entered into force. This Convention was incorporated or domesticated by referring to it in the Arbitration and Mediation Act (2023), but statutes are often dedicated to the domestication of treaties. There is no consensus on the most pragmatic way(s) to facilitate Nigerian treaty engagement. This article examines the Nigerian legal regime on treaties and explores the extent to which the regime can be maximised considering the Vienna Convention on the Law of Treaties (1969). A case is made for a principled basis to underpin the domestication of treaties that facilitate international business, including dispute resolution treaties. This analytical basis should enable legislative flexibility already woven into the overarching legal regime. The article articulates how such flexibility can be used to promote the operationalisation of relevant treaties using the Arbitration and Mediation Act as a paradigm.

The significant increase in the development of world economy over the last few decades have been experienced a considerable increase in the number of commercial disputes. When there is any business and dealings with contracts the question of dispute must be happened. But all of the parties actually want to run their business well and smoothly. In recent world a massive part of global economy depends on the trans-border business. But disputes in such business dealings sometimes can be the reasons to become risk the inter-relation of those parties. Which can affect the global economy as a whole. Comparing to the disputes inside domestic entities the trans-border or international business disputes can arise as bigger problem because of different jurisdictions, diverse legal systems and tradition. International Court of Justice (ICJ) already has the jurisdiction to try all the international civil suits but Alternative Dispute Resolution (ADR) mechanism also considered as a viable alternative to resolve the dispute over the court. The international arbitration arises as a way of alternative dispute resolution mechanism which upraise benefits both of the parties and maintain the confidentiality. In this paper details of international arbitration and the broader impact of this mechanism in the global business economy will be focused. The legal status and the implementation process of international arbitration also be the discussing point of this paper.

This article posits that the developing regulatory and governance framework surrounding artificial intelligence (AI) will greatly influence the field of alternative dispute resolution (ADR). Integrating artificial intelligence (AI) into alternative dispute resolution (ADR) methods heralds a transformation in our approach to achieving equitable and impartial justice. The article discusses AI's role in moulding ADR and potential future applications of AI in ADR. Furthermore, the paper examines the role of AI in assisting arbitrators during ADR cases and assesses the potential for AI to handle legal duties in ADR proceedings. Moreover, this study investigates how AI technology can enhance ADR processes, increasing their efficiency, precision, and accessibility. Despite the challenges that accompany this subject, the objective of this research is to achieve a balance between the positive and negative aspects of AI in arbitration, while preserving its core principles. Furthermore, the paper supplements the dialogue surrounding the future of AI in the legal industry. The researcher employs the mixed mode (qualitative and quantitative methodologies). The data has been collected through case studies from regions implementing AI-ADR, surveys, and interviews with ADR practitioners from legal professionals, judges, and affected parties to mitigate the procedural delay. Lastly, the researcher proposes pragmatic solutions and recommendations designed to streamline ADR as a means to foster a more equitable and efficient justice system.

International arbitration is a critical mechanism for resolving energy disputes, offering a neutral and efficient means for addressing complex cross-border issues. This research examines the role of UNCITRAL (United Nations Commission on International Trade Law) case law in shaping arbitration practices within the energy sector. By analyzing key UNCITRAL arbitral decisions, the study identifies emerging trends, procedural challenges, and key lessons learned from past energy-related disputes. It explores how the UNCITRAL Model Law provides a flexible framework for arbitral tribunals, ensuring fairness and impartiality in the resolution of disputes involving multiple jurisdictions and diverse stakeholders. Additionally, the research highlights the importance of UNCITRAL’s influence in enhancing the enforceability of arbitration awards and promoting consistency in energy dispute resolution. Through the review of significant case studies, the paper evaluates practical implications related to the application of international law principles, including the enforcement of contracts, good faith, and dispute resolution strategies. The study offers valuable insights for legal practitioners, policymakers, and stakeholders in the energy sector, recommending potential improvements to arbitration processes to foster greater predictability and efficiency in resolving energy disputes.

ENGLISH ABSTRACT: This study provides exploratory insight into the social justice mandate of the Commission for Conciliation Mediation and Arbitration (“CCMA”) in the context of labour relations in South Africa. As a vehicle for the advancement of social justice through the efficient resolution of labour disputes, the CCMA is a compelling actor in the pursuit of social justice in South Africa’s labour environment. Social justice as a legislative and policy imperative requires an investment in understanding its conceptual ideals and demands in order to empower those acting in its pursuit with the knowledge they need to fulfil its demands. The CCMA’s most critical functionary, its commissioner, holds the key to unlocking labour justice for many members of the public. One wonders, given the criticality of advancing social justice in labour relations, whether social justice is appropriately understood in order to enable the kind of decision-making that efficiently and consistently addresses the workings of power and inequality as they manifest in employment relationships. This study’s main provocation is to transform the pursuit of social justice (in the South African labour context, at least) from an elusive endeavour to a more tangible, realistic one. It attempts to offer a way of thinking about and applying social justice in the practice of labour dispute resolution in South Africa and the CCMA context. It critically explores the interwoven mechanisms of power, prejudice, and injustice and how these mechanisms work to sustain unequal labour relations. The commissioner’s role is thus a critical one, that involves a deliberate pursuit to recognise, understand and interrupt these movements of power and mitigate the effect of inequality. Any movement towards social justice that does not pay close attention to this matrix of power and prejudice threatens to dilute the transformative potency of social justice. This study identifies and discusses the decisions of commissioners that fall short of the kind of conscientious decision-making required by a mandate of social justice. Discussions in this study also point out significant achievements in centralising social justice principles in decision-making processes at the CCMA, where arbitrators, in reducing injustice and advancing justice in labour relations, show a conscientious consideration and appreciation of historical contexts, power, privilege and disadvantage. Living up to the constitutional imperative to transform society in the way of equality, commissioners ought to develop their agency and be empowered by the Constitution of the Republic of South Africa, 1996, to disrupt inequality. This study contributes to the understanding and clarification of social justice and its implications for the South African labour environment. It also posits ubuntu as an important consideration in the balancing exercise required to achieve justice.

The freedom of the parties to choose the applicable law to the merits is often presented as an important benefit of arbitrating disputes involving intellectual property (IP). Yet, the reality is more uncertain and controversial than is commonly assumed. Is party autonomy really permitted in IP arbitration? Should it be? This article answers these questions with regard to patents, trademarks, and copyrights, using recent examples drawn from arbitral practice. It first examines the situation where the parties only made a choice of contract law, and considers in this regard whether that law can and/or should be extended to infringement claims and/or the remedies to infringement, either directly or through the technique of characterization. After discussing the impact of overriding mandatory rules in contractual IP cases, the article then examines the situation where the parties chose a law to govern IP questions, including by way of a broad choice-of-law agreement covering non-contractual problems. It seeks to provide as much guidance as possible to arbitral tribunals, using mainly the distinction among infringement, ownership, and validity issues, and by distinguishing among different scenarios in which party autonomy is more or less acceptable.