The new Uniform Arbitration Act, the new Rules of Arbitration of the Common Court of Justice and Arbitration (Abidjan) and the new Uniform Mediation Act, adopted by the Council of Ministers of 17 OHADA Member States of Western and Central Africa, entered into force on 15 March 2018. All three texts expressly grant arbitral tribunals the power to suspend the arbitral proceedings, if a party rightfully claims noncompliance with a mandatory pre-arbitral procedure, as may be imposed by a multi-tier dispute resolution clause. In that case, the non-compliance can be cured without the arbitral tribunal having to dismiss the claims as non being (yet) admissible.
Article 8-1 of the revised Uniform Arbitration Act, Article 21-1 of the revised Arbitration Rules of the Common Court of Justice and Arbitration, and Article 15 of the Uniform Mediation Act allow an arbitral tribunal to fix a time limit for the parties to comply with the pre-arbitral procedure, after which the arbitral proceedings will resume, unless the parties were indeed able to settle their dispute. This truly innovative provision is one of the first of its kind in modern arbitration law worldwide. It addresses in a pragmatic cost-effective manner the growing number of objections (as to the tribunal’s jurisdiction and/or the admissibility of the claims) related to the issue of compliance with mandatory pre-arbitral steps in multi-tier dispute resolution clauses.