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Africard v. Niger, Judgment of the OHADA Common Court of Justice and Arbitration, July 15, 2016

14 Jul 2016
Africard Co Ltd. v. State of Niger, CCJA Case No. 003/2013/ARB
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Judgment of the OHADA Common Court of Justice and Arbitration (French)
Judgment of the OHADA Common Court of Justice and Arbitration (English)
Document Details:
LISTED PARTICIPANTS
Judgment of the OHADA Common Court of Justice and Arbitration (French)
Judgment of the OHADA Common Court of Justice and Arbitration (English)
Participants listed are for this document only and may not include all participants involved in the entire case. Always consult the original documents.
Claimant appointee
Respondent appointee
Tribunal/Panel chair
Arbitrator(s)
Sole Arbitrator
ICSID Annulment Committee president
ICSID Annulment Committee members
WTO Appellate Body members
WTO Appellate Body chair
Judges
Abdoulaye Issoufi Toure, Flora Dalmeida Mele, Namuano F. Dias Gomes, Victoriano Obiang Abogo, Marcel Serekoisse-Samba, Mamadou Deme, Idrissa Yaye, Djimasna N'Doningar, Birika Jean Claude Bonzi, Diehi Vincent Koua, Fode Kante, Cesar Apollinaire Ondo Mve, Robert Safari Zihalirwa
Claimant's counsel
Claimant's law firm
Respondent's counsel
Respondent's law firm
Other counsel
Claimant's expert
Claimant's expert firm
Respondent's expert
Respondent's expert firm
Claimant's witness
Respondent's witness
Other witnesses
Tribunal secretary
Tribunal assistant
Third-party funder
Entities
Niger, SCPA Justicia, Yankori & Associates
Country
Print reporter
Document Summary
Judgment of the OHADA Common Court of Justice and Arbitration (French)
Judgment of the OHADA Common Court of Justice and Arbitration (English)
This summary note is machine-generated. Always consult the original materials.

Procedural Background

This document is a judgment rendered by the Common Court of Justice and Arbitration (CCJA) of the Organization for the Harmonization of Business Law in Africa (OHADA). The proceedings concern an application filed by the State of Niger seeking the annulment of an arbitral award dated December 6, 2014, rendered in favor of Africard Co Ltd. The underlying arbitration involved a dispute over the unilateral termination of a contract for the production of biometric passports.

Jurisdiction and Admissibility

The respondent, Africard, raised an in limine litis objection to the admissibility of the annulment application, arguing that the grounds invoked were not provided for under Article 30.6 of the CCJA Arbitration Rules and that the application suffered from procedural irregularities regarding certified annexes. The CCJA dismissed this objection, finding that the application properly invoked the tribunal's alleged failure to comply with its mandate—a recognized ground for annulment—and that the procedural requirements for the annexes had been satisfied.

Court's Analysis

Niger advanced two primary grounds for annulment. First, Niger argued that the arbitral tribunal failed to conform to its mandate by relying solely on an expert report to quantify damages, rather than applying Nigerien public procurement law, which caps termination indemnities. The CCJA rejected this argument, noting that the Nigerien Council of State had previously declared the invoked procurement laws inapplicable to the contract as they were enacted post-formation. Furthermore, the Terms of Reference explicitly authorized the tribunal to appoint experts. Consequently, the tribunal acted within its mandate by utilizing the expert report to assess the damages and lost profits.

Second, Niger contended that the award lacked sufficient reasoning, in violation of Article 22.1 of the CCJA Arbitration Rules. The CCJA dismissed this ground outright, holding that under Article 29.2 of the Rules, the insufficiency of reasoning does not constitute a valid basis for setting aside an arbitral award, as it is not enumerated among the exhaustive grounds in Article 30.6.

Decision

The CCJA declared the State of Niger's application for annulment admissible but dismissed it on the merits as unfounded. Consequently, the Court upheld the validity of the arbitral award and ordered the State of Niger to bear the costs of the proceedings.