Arbitration in the Democratic Republic of the Congo: A Key Tool for Resolving Disputes

Arbitration is an increasingly important method of resolving commercial and investment disputes in the Democratic Republic of the Congo (DRC). Given the country’s history of political instability and internal conflict, arbitration offers a neutral, reliable, and efficient alternative to local courts—especially for foreign investors. As the eleventh-largest country in the world and one rich in natural resources, the DRC relies heavily on foreign investment for economic development. Arbitration’s predictability and impartiality make it a preferred option in this context.

Legal Framework for Arbitration in the DRC

Arbitration in the DRC is governed by two main legal instruments:

  1. The Uniform Act on Arbitration, adopted on 23 November 2017 by OHADA (the Organization for the Harmonization of Business Law in Africa); and
  2. The Congolese Code of Civil Procedure, specifically Articles 159 to 194.

The Uniform Act applies to arbitrations seated in any of the OHADA Member States, which includes the DRC alongside 16 other African nations.

Forms of Arbitration Agreements

Under both the Uniform Act and the Congolese Code of Civil Procedure, arbitration agreements can take two forms:

  • Arbitration Clause: A pre-dispute agreement to refer future disputes to arbitration.
  • Submission Agreement (Compromis): An agreement made after a dispute has already arisen.

Both forms must be in writing or evidenced by a document that confirms the parties’ intent to arbitrate (Uniform Act, Article 3.1; Civil Procedure Code, Articles 160 and 164).

Composition of the Arbitral Tribunal

The tribunal may consist of either a sole arbitrator or a panel of three (Uniform Act, Article 8).

  • Party Autonomy: The parties are free to agree on the appointment process.
  • Default Process:
    • For a three-member tribunal, each party appoints one arbitrator, and the two appointed arbitrators choose the presiding arbitrator.
    • If a party fails to appoint an arbitrator within 30 days of receiving a request, the appointment is made by a competent judge in the OHADA State.
    • For a sole arbitrator, joint agreement is required; failing that, the appointment is also made by the court (Uniform Act, Article 5).

Arbitral Awards

Awards must meet specific formal requirements (Uniform Act, Article 20):

  • Names of the arbitrators;
  • Date and place of the award;
  • Names and addresses of the parties and their legal representatives;
  • A summary of claims, defences, procedural steps, and reasons for the decision (Article 21);
  • The signature of the tribunal (Article 22).

Once rendered, the award has res judicata effect—it is final and binding (Article 23).

Challenging Arbitral Awards

Arbitral awards cannot be appealed or opposed under the Uniform Act (Article 25). They may, however, be annulled on limited grounds, including:

  • Absence of a valid arbitration agreement;
  • Improper constitution of the tribunal;
  • The tribunal exceeded its mandate;
  • Breach of due process;
  • Award contradicts international public order;
  • Lack of reasoning in the award (Article 26).

Annulment Procedure:

  • Must be filed before the competent local judge within the OHADA Member State.
  • The judge must decide within three months; if not, the application may be escalated to the Common Court of Justice and Arbitration (CCJA), which must decide within six months (Article 27).
  • Filing an annulment request suspends enforcement of the award (Article 28).

Recognition and Enforcement of Foreign Arbitral Awards

To enforce an arbitral award in the DRC (or any OHADA State), a party must obtain recognition (exequatur) from a competent court (Article 30).

  • Recognition may be refused only if the award clearly violates international public order (Article 31).
  • A decision granting exequatur is final and cannot be appealed (Article 32).
  • A refusal of exequatur can be challenged before the CCJA.

Under the Congolese Code of Civil Procedure (Article 184), enforcement also requires a court order from the president of the competent court. That order can be appealed (Article 185).

The DRC is also a party to the New York Convention, which further supports the enforcement of foreign arbitral awards within its territory.

Investment Arbitration in the DRC

Article 3 of the Uniform Act permits arbitration based on investment-related instruments, including:

  • Bilateral and multilateral treaties; and
  • The DRC’s own Investment Code of 2002.

The DRC has participated in several notable investment arbitration cases, including:

  • African Holding Company of America, Inc. and Société Africaine de Construction au Congo S.A.R.L. v. DRC (ICSID Case No. ARB/05/21);
  • Patrick Mitchell v. DRC (ICSID Case No. ARB/99/7);
  • Banro American Resources, Inc. and Société Aurifère du Kivu et du Maniema S.A.R.L. v. DRC (ICSID Case No. ARB/98/7).

These cases illustrate the country’s growing engagement with investor-state dispute settlement mechanisms.

Final Thoughts

Arbitration serves a crucial function in the DRC’s legal and commercial environment. It offers a stable and effective alternative to litigation in a country where the judiciary may not always inspire investor confidence. The legal framework—anchored in OHADA’s Uniform Act and supported by national legislation—provides clear rules and procedures for both commercial and investment disputes. As foreign investment continues to play a vital role in the DRC’s development, arbitration will remain a key pillar of dispute resolution in the country.