Warehouse Receipt Law Reform in Africa: OHADA as a Case Study

Abstract

This PhD research assesses whether the United Nations Commission on International Trade Law (UNICTRAL) and International Institute for the Unification of Private Law Model Law on Warehouse Receipt (UNIDROIT MLWR) can be adopted by the Organisation for Harmonisation of Business Law in Africa (OHADA). The research also answers questions of which form of law will benefit the needs of businesses of OHADA member states, including smallholder farmers. The research assesses whether it will be beneficial to complement the provisions of the UNIDROIT MLWR with legal transplants from two chosen jurisdictions: the US and France. The primary research methods for this PhD research are comparative legal analysis and application of theories of harmonisation and unification of law and legal transplant. The analysis from this research indicates that OHADA adheres to the French civil law tradition. OHADA follows the path dependency route, which resulted in the successful implementation of several legal instruments - Uniform Acts. Several intergovernmental organisations have named OHADA a successful international organisation with a mandate to implement supranational laws. Almost all OHADA member states have the same civil French background and closely adhere to the French civil law tradition. The UNIDROIT MLWR is designed so that any country can adopt it regardless of legal background. Therefore, some provisions of the UNIDROIT MLWR can be tailored to address the business practices and traditions of OHADA member states. As OHADA member states follow a French legal background, the French warehouse receipt legislation can be utilised to tailor the UNIDROIT MLWR. The US warehouse receipt legislation is considered robust and has been adopted by many countries. Therefore, the US warehouse receipt legislation can also be used to adopt the UNIDROIT MLWR. This PhD research analysis recommends that OHADA adopt the UNIDROIT MLWR in the form of a Uniform Act on Warehouse Receipt.