La jurisprudence de la Cour commune de justice et d’arbitrage (CCJA) sur l’immunité d’exécution au profit des entreprises publiques – Quo vadis?

• Published in: Recht in Afrika
• Main Author: Jules Masuku Ayikaba
• Format: Article in Journal/Newspaper
• Language: German; English; French
• Published: Nomos Verlagsgesellschaft mbH & Co. KG 2023
• Subjects: Asia and Eurasia; Africa; Pacific Area; and Antarctica; KL-KWX; Pacific; Antarc*; Antarctica
• Online Access: https://doi.org/10.5771/2363-6270-2022-2-223; https://doaj.org/article/1a181633c5684778ae7f7cbbc51df7f6

This study traces the evolution of the CCJA case law on the principle of exemption from enforcement for public companies. It aims in particular to highlight the direction in which this case law is moving. It appears that the CCJA has so far not succeeded in elaborating its own definition of the concept of “public companies”; yet it is there that, in our view, the mystery of the immunity from execution that it has long recognized to these companies hides; even when they were incorporated in the form of a corporation. However, over time, the Court has rightly reversed its previous decisions by moving from an extensive to a restrictive interpretation of exemption from enforcement. In any case, the involvement of the lawmaker is more than welcome in order to put an end to the situation of inequality, which has existed for a long time in terms of enforcement under OHADA law, between corporations having the State or its branches (public companies) as shareholders and those whose shareholders have no State participation.