AFRICA-WIDE: An Introduction to Corporate/Commercial: OHADA Specialists

Interim Measures Under OHADA Law: How to Secure Your Application for Provisional Attachment?

Article 54 of the OHADA Uniform Act on Simplified Recovery Procedures and Enforcement Measures (the “Uniform Act”) offers creditors of private parties a powerful legal instrument.

This article states: “Any person whose claim appears to be well-founded may, by petition, request authorisation from the competent court at the domicile or place of residence of the debtor to take provisional measures against all movable tangible or intangible assets of the debtor, without prior notice, provided they demonstrate circumstances likely to jeopardise recovery.”

An ex parte procedure, with no upper limit, applicable to all movable assets belonging to the debtor: it is easy to imagine the effectiveness of such a mechanism for a creditor without an enforceable title. This tool can serve as leverage for amicable dispute resolution or as a safeguard to initiate substantive proceedings without the risk of finding no assets to enforce the judgment upon obtaining an enforceable decision.

However, this seemingly straightforward procedure, particularly because it is adapted to a wide variety of claims, comes with pitfalls that must be anticipated, especially regarding the requirement for “circumstances likely to jeopardise recovery.” It is also crucial to understand the process timeline, present the application before the appropriate court, and identify which assets to target.

A mechanism adapted to a broad range of claims

Unlike other mechanisms under OHADA law, such as payment orders, which require the classic tripartite criteria of a claim being “certain, liquid, and due” or demand a claim with a specific origin, for example, contractual, the provisional attachment encompasses a near-infinite spectrum of scenarios.

The central requirement concerning the nature of the claim is that it “appears well-founded.” It is incumbent upon the creditor seeking authorisation for the provisional measure, within their application, to convince the judge that this condition is met.

The necessity to demonstrate “circumstances likely to jeopardise recovery”

Possessing a claim that appears well-founded is not enough. The creditor must also demonstrate that its recovery is threatened and provide evidence to that effect.

For the creditor, this requires finding the right balance between two extremes: on one side, common situations such as delayed payment, which do not qualify as a threat to recovery; on the other, the initiation of collective insolvency proceedings, which protect the debtor from individual claims and render further action impossible. In essence, the timing must be neither too early nor too late.

This requirement is, therefore, twofold: identifying the precise moment when recovery can be deemed at risk and providing proof thereof. This task can often verge on the impossible, as creditors frequently lack access to relevant information.

The case law of the Common Court of Justice and Arbitration and OHADA member states’ national courts has gradually established a typology of situations to guide practitioners. For example, the debtor’s failure to settle their debt despite reminders or formal notices will not suffice; the standard of proof required is more stringent.

Identifying the right timing, competent judge and suitable assets

Provisional attachment under OHADA law is subject to strict conditions regarding timing and territorial jurisdiction. The identification of assets to be targeted by the measure is equally crucial.

By nature, this interim measure is temporary and must adhere to two deadlines set by Articles 60 and 61(1) of the Uniform Act.

First, the creditor must implement the measure no later than three months after obtaining judicial authorisation. Then, once the measure is enforced, a new, even shorter deadline applies: the creditor has only one month to initiate proceedings to secure an enforceable title against the debtor.

Mastering time management is therefore critical. This includes identifying the optimal moment to request ‒ and obtain ‒ judicial authorisation, promptly implementing the measure, and almost immediately pursuing further action to maintain the provisional attachment. Failure to comply results in a severe sanction: nullification. The creditor is returned to their original position before initiating the process, likely in a weaker state, having lost time and potentially alerted the debtor to their intentions.

It is also important to remember that the competent judge for ordering the measure will always be the one “of the place where the debtor resides,” regardless of the location of the assets to be attached within the country.

However, having as clear a view as possible of these assets is far from futile; it is, in fact, essential. Identifying assets that can be seized should be considered at the outset. While the general rule allows for the attachment of all movable assets belonging to the debtor and excludes immovable property, exceptions exist within movable assets themselves: safes, business goodwill and salaries are excluded. On a practical level, some assets will be easier to identify, seize and ultimately recover value from than others. Therefore, proceeding blindly is ill-advised.

A formidable weapon against the debtor, provisional attachment under OHADA law can also become a double-edged sword, potentially turning against a creditor who fails to wield it properly. Every detail must be meticulously prepared with a thorough understanding of the practical context.