KluwerArbitration
Document information Chapter 1.4: Madagascar
Raphaël Jakoba
Publication §1.01 Arbitration Legislation
Arbitration in Africa: A
Practitioner's Guide
[A] Legislation
The principal national arbitration statute in Madagascar is the Arbitration Act No. 98-019
Jurisdiction of 2 December 1998 (in force since 26 April 1999), as amended by Law No. 2001-022 of 4
September 2003, which is largely inspired by French law on domestic arbitration and the
Madagascar UNCITRAL Model Law on international arbitration (the ‘Arbitration Act’). The Act
constitutes Book IV of the Malagasy Civil Code (Articles 439–464(2)).
The Act can be located at <www.lexadin.nl/wlg/legis/nofr/oeur/lxwemad.htm> (Code de
Bibliographic Procedure civile). To date, there is no proposal to reform the current Arbitration Act.
reference
Raphaël Jakoba, 'Chapter [B] Differences with the Model Law
1.4: Madagascar', in Lise Madagascar has largely based the provisions on international arbitration in the
Bosman (ed), Arbitration in Arbitration Act (in Title III) on the 1985 UNCITRAL Model Law. The main differences
Africa: A Practitioner's between the UNCITRAL Model Law and the Malagasy law are as follows:
Guide, (© Kluwer Law
International; Kluwer Law – There is no equivalent to Article 11(4) of the Model Law regarding recourse to a court
International 2013) pp. 41 - or appointing authority where an appointment procedure fails.
46 – Where a challenge to an arbitrator has been submitted to an arbitral institution,
Malagasy law provides that the arbitral tribunal must refuse to hear the challenge.
– In contrast to Article 16(3) of the Model Law, the tribunal may not continue the
proceedings while a court is reviewing a tribunal’s decision that it has jurisdiction.
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– Malagasy law provides that rectification of an award is at the discretion of the
arbitrator, whereas in the Model Law, it may be made at the request of one of the
parties.
– Where an award has been set aside, Malagasy law provides the possibility for the
State court seized with the setting-aside proceedings to rule on the merit of the
dispute, at the request of both parties.
– Malagasy law allows parties not resident in Madagascar to exclude any recourse,
total or partial, against the arbitral award.
§1.02 Treaty Adherence
Madagascar has been a party to the New York Convention since 14 October 1962,
implemented by Order No. 1847 of 24 August 1962 as amended by Law No. 2001-22 of 9
April 2003.
Madagascar is not a party to the OHADA Convention.
§1.03 The Practice of Arbitration
[A] General
The Arbitration Act is rarely invoked before the Malagasy Courts. For example, during the
last ten years, the Malagasy Court has referred to the provisions of the Arbitration Act
only some six times.
Arbitration is still a new form of dispute settlement. Malagasy arbitral practice is still in
its early stages, and therefore arbitration is rarely used in Madagascar, even though most
international contracts provide for arbitration before the International Court of
Arbitration (ICC) Paris. For domestic contracts, the Malagasy arbitration body Centre
d’Arbitrage et de Médiation de Madagascar (CAMM) has dealt with at most four cases
annually to date.
[B] Arbitral Institutions
The main arbitral institution in Madagascar is the following:
Centre d’Arbitrage et de Médiation de Madagascar (‘CAMM’)
(Centre of Arbitration and Mediation of Madagascar)
Chambre de Commerce et d’Industrie d’Antananarivo
20, Rue Henry Razanatseheno, Antaninarenina
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Antananarivo Madagascar
Tel: + 261 (0) 20 22 202 12
Website: <www.camm.mg>
The institution administered the following arbitrations from 2007–2011:
– 2007: 4 domestic and 1 international cases;
– 2008: 3 domestic and 1 international cases;
– 2009: 2 domestic and no international cases;
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– 2010: 1 domestic and no international cases;
– 2011: 1 domestic and no international cases;
– 2012: no cases.
CAMM was, however, relaunched in 2012.
[C] Courts
The Court of Appeal of Antananarivo has jurisdiction over arbitration-related court
proceedings. The approach of the national courts is in general to limit the scope of the
arbitration agreement; the courts have therefore shown a tendency to invalidate
arbitration agreements. In international arbitration, the Court of Appeal of Antananarivo
is authorized to order interim measures to support arbitral proceedings.
The approach of the State courts has been not to assist arbitral proceedings but rather to
make it more complicated for the parties as well as for the arbitral institution.
[D] Enforcement of Awards
Arbitral awards (domestic or international) require the issuance of an exequatur to be
enforced in Madagascar. The procedure is as follows:
(1) For domestic arbitration, the request is filed by one of the arbitrators or the
requesting party with the magistrate’s court within the competence of which the
arbitration award has been issued, accompanied by a copy of the award and the
arbitration clause.
(2) For international arbitration, a request for exequatur must also be addressed to the
Court of Appeal of Antananarivo by the requesting party, accompanied by the
original or a certified copy of the arbitral award, as well as the original or a certified
copy of the arbitration agreement.
In all cases, the exequatur judge is only authorized to review the form of the arbitral
award. The exequatur judge can refuse the exequatur only if the document submitted
does not constitute an arbitration award, if it is obviously invalid, or if its dispositions are
in violation of public policy.
Grounds for refusal of the enforcement of arbitral awards include the following:
(1) Grounds invoked and proved by the party resisting enforcement:
– Incapacity of one of the parties to the arbitration agreement.
– Invalidity of the arbitration agreement.
– The existence of a legal flaw concerning the appointment of the arbitrator and
the constitution of the arbitral tribunal.
– That the arbitrator ruled on an object beyond the scope of the arbitration
agreement.
– That the award is not yet binding between the parties or has been set aside.
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(2) Grounds raised by the Court of Appeal ex officio:
– Non-arbitrability of the dispute.
– That recognition or enforcement of the arbitration award is against
international public policy.
The courts are generally willing to enforce foreign arbitral awards even against Malagasy
nationals.
The Arbitration Act does not provide for a deadline for seeking recognition and execution
of the foreign arbitration award, but in practice, the exequatur is issued on average
within a year, because State judges misunderstand the procedure.
There are no restrictions on foreign lawyers representing parties in arbitral proceedings
seated in Madagascar.
[E] Current Trends
Lack of knowledge about arbitration by its main users in Madagascar (i.e., companies,
lawyers, judges and the government) leads to its being ineffective. Furthermore, the
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approach of Malagasy courts is not favourable to arbitration, which is perceived as a
competitor to the courts. However, perceived failures of the courts (in terms of lack of
independence and corruption) have led to some recent increased interest in arbitration
in local business circles. For instance, the arbitration centre CAMM was relaunched in
2012 with the backing of the Chamber of Commerce and Industry of Antananarivo (CCIA)
for greater integration of the business community.
Despite the adherence of Madagascar to the New York Convention, in 2002 the local court
of Toamasina accepted jurisdiction over an international case that was pending before
an international arbitral institution, and pronounced a judgment in favour of the
Malagasy party.
§1.04 Investor-State Arbitration
Madagascar has been a party to the ICSID Convention since 14 October 1966.
Madagascar is party to bilateral investment treaties (BITs) with the following countries:
Belgium and Luxembourg (in force 29 November 2008); China (in force 1 July 2007); France
(in force 17 May 2005); Mauritius (in force 1 June 2005); Norway (28 September 1967) and
Sweden (23 June 1967). It has also signed BITs with Germany, South Africa and Switzerland.
Madagascar does not make use of a model BIT, nor has it been a party to any known
investment treaty arbitrations.
Selected Bibliography
Raphaël Jakoba. ‘L’arbitrage dans l’Océan Indien’. Revue du Centre d’arbitrage et de
médiation de Madagascar 7 (2004).
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Raphaël Jakoba. ‘Droit et pratique de l’arbitrage à Madagascar’. Revue de l’arbitrage 2
(2003).
Alisaona Raharinarivonirina. ‘Arbitrage et droit de travail’. Revue du Centre d’arbitrage et
de médiation de Madagascar 2 (2002).
Jean Rakotoarison. ‘L’Intégration juridique de l’arbitrage à Madagascar: orientation et
principes'. Revue de prévention et de règlement 2, no. 3 (2004).
Jean Rakotoarison. ‘Réflexion sur la capacité de fécondation des systèmes juridiques
réels par le droit au développement perçu comme synthèse des droits fondamentaux de
l’être humain’. Revue du Centre d’arbitrage et de médiation de Madagascar 7 (2004).
Tahiana Ranaivoson. ‘La confidentialité de l’arbitrage’. Revue du Centre d’arbitrage et de
médiation de Madagascar 7 (2004).
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