The following article is taken from the ALB (African Law & Business). Click here to go to the original article.
01 SEPTEMBER, 2017 |
An event hosted by the Chartered Institute of Arbitrators investigated the differing approaches toward arbitration taken by African countries.
The need for greater harmonisation between Africa’s differing legal traditions is needed if international arbitration is going to take hold on the continent and attract a greater number of cases to African seats, according to delegates at the International Arbitration Conference hosted by the Chartered Institute of Arbitrators (CIArb).
The event, hosted in Johannesburg on 19 and 20 July, was the second of three international events the institute is running in 2017, which consider the harmonisation of different legal traditions in international arbitration.
With the first event held in Dubai earlier this year, focusing on the Middle East and Asia, and the third event due to consider European matters in Paris this December, the Johannesburg event was an opportunity to consider African-related matters, with a stated focus on ‘the synergy and divergence between civil and common law in international arbitration’.
The event was headlined by a keynote speech from John Jeffery, South African deputy minister of justice, following an opening address by CIArb president Nayla Comair-Obeid.
The thrust of conversation throughout the event was on collaborating ideas to find common ground between civil and common law jurisdictions in international arbitration; a particularly pressing issue in Africa, whose tangled colonial history has contributed to a distinct mixture of both systems, as well as Islamic laws and local customs. In particular, the afternoon’s fourth panel emphasised the need for arbitral rules that are flexible enough, to handle those differences, and for a flexible, fair and transparent arbitration process.
Speakers included Nigerian minister of justice Abubakar Malami and chief judge Justice Ishaq Bello, Zambian Supreme Court justice Charles Kajimanga and Joyce Aluoch of the International Criminal Court and formerly the Kenyan Court of Appeal.
Among the problems tackled by the panels, was the question of how an ‘arbitration-friendly’ seat can be developed in Africa when international parties are still reluctant to site their disputes on the continent.
In particular, the Common Court of Justice and Arbitration (CCJA) of Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) in West and Central Africa, has developed into a modern international arbitration institution. As yet, not enough cases have come through it for it to build up its reputation, but this is something which observers believe will change over time, as disputes emerge from the contracts which have CCJA clauses, of which there are believed to be a good number.
Another panel considered the way in which South Africa, Nigeria, Kenya, Zambia and Uganda approach international arbitration, with panellists representing the judiciaries of those countries reporting a generally positive outlook, in line with their status as signatories of the New York Convention, although differences of interpretation remain.
There was also discussion of the role played by Africa’s differing legal traditions and cultures in serving client needs, and a timely discussion of the role of investment arbitration and bilateral investment treaties (BITs), which have traditionally offered that protection to international parties. Investor-state dispute settlement (ISDS) systems have become more controversial in recent years, due to perceived conflict between the needs of private business and governments which answer to the public.
In Africa this has been typified by South Africa’s decision to cancel many of its BITs, particularly with European nations, due to what it believes is the risk to its black economic empowerment (BEE) policies.
It has instead offered a system of investor-state mediation as an alternative, but questions remain as to its effectiveness. Meanwhile, it has overhauled its international arbitration structures, hoping to mend its reputation in international arbitration circles and to turn itself into a greater destination for dispute resolution in Africa.
Attendees at the CIArb event noted that the split between civil and common law have sometimes created problems for parties trying to access dispute resolution through BITs and there can be culture differences.
In particular, there are differing approaches to witness statements, the allocation of costs and in terms of reference.
A statement from CIArb after the event noted “these considerations need to be kept in mind when reshaping the content of investment treaties in South Africa and more generally on the African continent”.
Closing the event, Comair-Obeid called for the creation of a working group of African countries to compare Africa’s arbitration frameworks, with the aim of finding common ground and bridging the gap between best practices.
The president also spoke of the need for greater education for judges across the continent about arbitration and as a way of breaking down the differences between Africa’s legal traditions.
In June this year, a leading academic used CIArb’ s Roebuck Lecture to call for arbitration practitioners at all levels to take greater responsibility for the development of the discipline.
The institute has taken an increasingly international look at arbitration, opening a branch in Canada on 1 July this year and hosting an event in London which looked at greater arbitration opportunities in China.
