Mac Mahon Avocats advises companies, groups and investors facing financial difficulties in Democratic Republic of the Congo. Proceedings there are governed by the OHADA Uniform Act organising collective proceedings for the discharge of liabilities (AUPC), revised on 10 September 2015 and applicable in the seventeen member States of the Organisation for the Harmonisation of Business Law in Africa.
The AUPC applies directly: it requires no transposition or national implementing statute and prevails over inconsistent domestic provisions. It provides four routes: conciliation, a confidential out-of-court procedure available before payments are suspended; preventive settlement, a preventive court procedure leading to an approved composition; judicial reorganisation, opened after payments are suspended where recovery is not manifestly impossible; and liquidation of assets, which organises the realisation of the estate.
The AUPC also provides simplified procedures for small enterprises, a regulated status for insolvency practitioners and a directors' liability regime (action to make good the shortfall, personal bankruptcy) whose time limits are a matter of public policy.
The DRC joined OHADA in 2012 and has commercial courts, notably in Kinshasa and Lubumbashi. The AUPC has applied there since accession took effect, replacing earlier inconsistent provisions.
Court primarily concerned: Commercial Court of Kinshasa/Gombe (and Commercial Court of Lubumbashi). Jurisdiction is determined by the debtor's principal establishment, or by the registered office for legal entities.
The Congolese economy is dominated by extractive industries in Katanga and Lualaba (copper, cobalt) and by long, costly inland logistics. Swings in world prices and transport constraints weigh directly on the cash position of operators and their subcontractors.
Matters arising in Democratic Republic of the Congo mainly concern: mining and mining services, energy, transport and logistics, retail, telecoms, construction. These activities involve cash cycles, bank financing issues and subcontracting chains whose analysis determines the choice of procedure.
Congolese cases regularly combine mining law — titles, Congolese local-content subcontracting requirements, environmental commitments — with OHADA insolvency proceedings. Coordination with foreign shareholders or lenders and the choice of accounting currency are significant issues.
The firm acts in an advisory capacity: analysis of the financial and legal position, mapping of liabilities, selection of the appropriate procedure, preparation of the documents submitted to the conciliator or to the expert in preventive settlement, negotiation with banks and trade creditors, and coordination with proceedings opened in France for multi-jurisdictional groups.
Representation before the Congolese courts is provided by lawyers admitted to the local bars, with whom the firm works in coordination. This arrangement complies with the territorial rules applicable to the legal profession.
For groups present in both France and Democratic Republic of the Congo, coordination requires identifying each entity's centre of main interests, anticipating the effects of the proceedings on security interests and intra-group guarantees, and addressing recognition of judgments through exequatur. There is no uniform recognition instrument between OHADA and the European Union: each judgment follows ordinary law or the applicable bilateral treaties.
Each instrument retains its own scope: the AUPC governs the insolvency proceedings, while the mining code governs titles and sector-specific obligations. How the two interact must be assessed case by case.
Effects abroad require recognition by the court where the assets are located, under local law or applicable treaties.
The OHADA AUPC of 10 September 2015, which applies directly and prevails over inconsistent national provisions.
Commercial Court of Kinshasa/Gombe (and Commercial Court of Lubumbashi), depending on the debtor's principal establishment.
No. The firm acts in an advisory capacity only, in coordination with lawyers admitted to the local bars.
It requires an exequatur procedure in France, under ordinary law or any applicable bilateral treaty.
Matters within the OHADA area are handled together with partner lawyers admitted to the local bars. Those colleagues, admitted before the competent courts, carry out procedural steps and appear before the courts. Mac Mahon Avocats works alongside them, providing restructuring advice and coordinating the matter from Paris.
This arrangement complies with the applicable professional rules: the firm does not itself provide court representation before the courts of the OHADA member States.
An initial confidential discussion helps identify the appropriate procedure (conciliation, preventive settlement, judicial reorganisation or liquidation of assets).
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Advisory work only, together with our partner lawyers admitted to the local bars, who provide representation before the competent courts. No outcome can be guaranteed: every situation depends on the facts and on the court's assessment.