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Theses

L’exécution des sentences arbitrales contre les personnes publiques de l’OHADA

Abstract : The thesis focuses on " The execution of arbitral awards against public persons of OHADA ". Its purpose is to demonstrate how to implement these sentences without coming up against the immunity from execution of the persons who benefit from them. Indeed, in the absence of an arbitration exception, the prohibition of forced execution and interim measures against these persons seems to extend to the forced execution of arbitral awards against public persons of the OHADA. However, like the latter, immunity from execution also has a contractual basis ; it is a rule of public order of protection which the beneficiary can waive. Therefore, its application would only be required if its beneficiary has not waived it. However, to be valid, the waiver of immunity from execution must be express, within the meaning of customary international law, of which the United Nations Convention on Jurisdictional Immunity of States and their Property of December 2, 2004 forms part. applicable in OHADA law, for legal reasons. This condition of validity of the waiver poses the problem of the effectiveness of contracts subject to the mandatory rules of public law or arbitration agreements and regulations. So, should we consider rewriting the usual models of arbitration agreements and rules to include this condition ? This approach would guarantee the effectiveness of administrative arbitration awards, based on the binding force of contracts (pacta sunt servenda) and their performance in good faith. Also, this waiver could be reinforced by the mention of property assigned to the activity in question or to the execution of the award which will ensue unrelated to the activity which gave rise to it. In any event, immunity from execution does not preclude either the identification of the debtors of the pecuniary judgments of public persons, nor the exequatur of administrative arbitration awards, nor even the voluntary or spontaneous execution of the said sentences. T hus, despite its absolute or strict design, OHADA immunity from execution has limits with respect to administrative arbitral awards.
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https://tel.archives-ouvertes.fr/tel-03700949
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Submitted on : Tuesday, June 21, 2022 - 3:18:25 PM
Last modification on : Thursday, August 4, 2022 - 4:56:44 PM
Long-term archiving on: : Thursday, September 22, 2022 - 7:40:39 PM

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Comlan René Vodounon-Djegni. L’exécution des sentences arbitrales contre les personnes publiques de l’OHADA. Droit. Université Côte d'Azur, 2022. Français. ⟨NNT : 2022COAZ0008⟩. ⟨tel-03700949⟩

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