Author: Olivier FILLE-LAMBIE / Jean-Marc LONCLE
N0:1 of 2003
If it is established under French law that a State may not use its own national law to invalidate an arbitration clause in an international contract to which it is party, the issue of the validity of such a clause in an international public service concession can be raised.
The recent evolution of arbitration law, in France as well as in the OHADA member States, seems to be favourable to the recognition of the validity of such arbitration clauses. This validity is necessary either for the protection of the investors in the concession, as well as for the bancability of the project.
ICSID arbitration is very well adapted to settle disputes arising out of a public service concession. Failing an ICSID arbitration provision in the concession contract, the investor can seek the ICSID competence within the frame of a bilateral treaty for the protection of foreign investments. The OHADA Law of arbitration should also give an appropriate legal regime favourable to arbitration in the context of a concession agreement, even though a confirmation from the CCJA is desirable in order to avoid any further debate relating to this question.