DISEÑO DE RESORTES HELICOIDALES DE COMPRESION PARA CARGA ESTÁTICA

4.5.1 GENERAL NOTIONS

Among those manifestations of the lex mercatoria outside Europe an interesting case is the Organization for the Harmonization of Business Law in Africa (with its French acronym OHADA).¹⁰⁵

Article 1 of the Treaty of Port Louis (Mauritius) of 17October 1993 that created the Organization establishes:¹⁰⁶

The objective of the present Treaty is the harmonisation of business laws in the Contracting States by the elaboration and adoption of simple modern common rules adapted to their economies, by setting up appropriate judicial procedures, and by encouraging arbitration for the settlement of contractual disputes.

OHADA seeks for the integration of laws in different areas of the economical spectrum. The OHADA framework currently regulates eight areas of business law – commercial law, corporate law, security, debt recovery and enforcement, bankruptcy, arbitration, accounting and the law regulating contracts for the carriage of goods by road. There are plans underway to harmonize other areas including competition law, intellectual property law, banking law, labour law, evidence and contract law.¹⁰⁷

105 Based on the experience of OHADA, in the Conference of 15 May 2007 in Pointe à Pitre, Guadeloupe the OHADAC project was created. OHADAC is the acronym for the Organization for the Harmonization of Business Law in the Caribbean. This project is in an incipient stage at the moment, despite the fact that a number of conferences and seminars have taken place supporting the initiative. For example, a Statement by the Latin American and Caribbean Congress of International Commercial Arbitration in Havana was signed in June 2010 for the promotion of the OHADAC project. The site of the Project is:

<http://www.ohadac.com/home.html> accessed 3 June 2011.

106 The OHADA Treaty is made up today of 16 Africans states: Benin, Burkino Faso, Cameroon, Central African Republic, Comoros, Congo, Ivory Coast, Gabon, Guinea, Equatorial Guinea, Guinea Bissau, Mali, Niger, Senegal, Chad and Togo. Initially fourteen African countries signed the treaty, with two countries subsequently adhering to the treaty (Comoros and Guinea) and a third (Democratic Republic of Congo) due to join shortly. Article 53 of the OHADA Treaty provides that any Member State of the African Union may become a member.

107 An impediment the Organisation confronts is the diversity of family legal traditions present in the sub-region (West and Central African States) with common and civil law jurisdictions. It is difficult to bring Anglophone West Africa into OHADA’s projects because of the perceived civilian nature of its legal thought. The other concern is the diversity of languages: English, French, Spanish and Portuguese. An example that can illustrate this situation is Cameroon,

OHADA establishes the supremacy and direct effect of the OHADA uniform laws; however it still provides member states with a flexible and modern approach which can be adapted to each country.

Furthermore, the objective of OHADA to promote African economic integration and attract investment to the region is pursued through the establishment of a Common Court of Justice and Arbitration. This mechanism provides a trustworthy way to settle disputes relating to the application and interpretation of the uniform acts by different national courts.

4.5.2 DRAFT OHADA UNIFORM ACT ON CONTRACT LAW

The preliminary Draft OHADA Uniform Act on Contract Law has been prepared by Fontaine in line with the UNIDROIT Principles of International Commercial Contracts.¹⁰⁸

The Act deals with good faith from the point of view of the protection of the weaker party, since it is assumed that inequalities of bargaining power exist also in business relationships.¹⁰⁹ This view is based on Fontaine’s preliminary work for the elaboration of the Draft: he carried out interviews, questionnaires and visits to the numerous African countries involved. The key question in the questionnaire was:

The UNIDROIT Principles set great store by good faith (art. 1.7) and some of its consequences: the duty to collaborate (5.3), mitigation of harm (art. 7.4.8), penalties for negotiating in bad faith (art. 2.1.15).

Should this approach, so typical of recent trends in international commercial law, be retained in the OHADA draft? ¹¹⁰

which is both Anglophone and Francophone. It is probable that before the Anglophone part joins, the existing Uniform Acts may need some readjustment to reflect the legal tradition of the joining group. See S Kofi Date-Bah, ‘The UNIDROIT Principles of International Commercial Contracts and the Harmonisation of the Principles of Commercial Contracts in West and Central Africa’ (2004) 9 Unif.L.Rev. 269.

108 See M Fontaine, ‘The Draft OHADA Uniform Act on Contracts and the UNIDROIT Principles of International Commercial Contracts’ (2004) 9 Unif.L.Rev. 573, 584.

109 Cf. M Fontaine, ‘OHADA Uniform Act on Contract Law. Explanatory Notes to the Preliminary Draft’ (2008) 13 Unif.L.Rev. 633, 647.

110 Ibid 662.

The countries which are the heirs of the civil law tradition are used to having good faith in the performance of the contract. The issue was whether they were prepared to enshrine good faith as a general principle in the different phases of the contract, because that is the way the UNIDROIT Principles embrace it. On this point opinions were almost uniformly positive.¹¹¹

However, as regards good faith in the case of change of circumstances and its consequences, the renegotiation of the contract, opinions were not unanimously favourable. Some (most of them still treasuring the precedent of the French law) consider that that could bring more uncertainty than the instability it intended to solve. Yet the view adopted by the Act was to incorporate renegotiation, including safeguards, to avoid improper use. Here, Article 6/22: ‘Where the performance of a contract becomes more onerous for one of the parties, that party is nevertheless bound to perform its obligations subject to the following provisions…’

The position of the majority in favour of the inclusion of renegotiation has prevailed, since it was considered that such a provision is beneficial for the unstable climate that characterizes Africa today.¹¹²

Renegotiation takes place in the case of hardship. Hardship is a novelty introduced in international commercial contracts by UNIDROIT, complementing the gap left by the United Nations Convention on Contracts for the International Sales of Goods 1980.¹¹³ The rule of the UNIDROIT Principles governing the issue is article 6.2.2 Definition of Hardship:

111 Furthermore, two thirds of those interviewed and Fontaine himself are in favour of extending the scope of this Act to all contracts without distinction, that is to say, a unified Act covering both civil (non-commercial) and commercial contracts. In fact, the Preliminary Draft makes an a priori case for a unified Act. In favour of the unification of civil and commercial obligations, see: L Carvajal, ‘La Unificación del Derecho de las Obligaciones Civiles y Comerciales’ (2006) 27 Revista de Derecho de la Pontificia Universidad Católica de Valparaíso 37.

112 As regards renegotiation, Park in Arbitration of International Business Disputes (OUP, Oxford 2006) 543 states that, ‘ICC arbitrators are not anxious to give the proverbial “pound of flesh”. They find the pacta sunt servanda principle to be tempered by another rule; that of good faith’. Furthermore, Carbonneau in ‘A Definition of and Perspective upon the Lex Mercatoria Debate’ in T Carbonneau (ed), Lex Mercatoria and Arbitration (Kluwer Law International, London 1998) 18, points out that, ‘The duty to renegotiate reflects the most innovative feature of rule creation through ICC arbitral adjudication’.

113 The United Kingdom has not yet ratified CISG, therefore UNIDROIT Principles are a useful international body of rules (not binding) to be applied in international contractual matters. See an explanation of this reluctance in A F M Maniruzzaman, ‘Formation of International Sales Contracts: A Comparative Perspective’ (2001) 29 IBL 483.

There is hardship where the occurrence of events fundamentally alters the equilibrium of the contract either because the cost of a party’s performance has increased or because the value of the performance a party receives has diminished, and

(a) The events occur or become known to the disadvantaged party after the conclusion of the contract;

(b) The events could not reasonably have been taken into account by the disadvantaged party at the time of the conclusion of the contract;

(c) The events are beyond the control of the disadvantaged party and;

(d) The risk of the events was not assumed by the disadvantaged party.

The cause of hardship is the new circumstances that make the contract more onerous. As a result, the debtor desires to be relieved from an extremely onerous obligation. In order to renegotiate the cooperation of the creditor is needed. Here, the concept of cooperation includes giving all reasonable support to the debtor when new unexpected circumstances occur. In support of this view, there is the commentary of article 6.2.2 (Definition of Hardship) of the PICC:

A contract is not merely a meeting point for conflicting interests but must also, to a certain extent, be viewed as a common project in which each party must cooperate. This view is clearly related to the principle of good faith and fair dealing (Art. 1.7) which permeates the law of contract, as well as to the obligation to mitigate harm in the event of non-performance (Art.7.4.8).

Finally, it is worth stressing that the inclusion of renegotiation in the Draft OHADA Uniform Act on Contract Law means that good faith is regarded as an element that can bring about certainty instead of uncertainty – the latter is the feature given to it by the orthodox doctrine in English law.

4.6 INTER-AMERICAN CONVENTION ON THE LAW APPLICABLE TO