Whose responsibility is it to scale up arbitration in Africa?

Last week, May 3-4, 2018, I attended the 4th Edition of the SOAS Arbitration in Africa Conference held in Kigali, organised by the Kigali International Arbitration Centre (KIAC).

The purpose was to analyse the role of Arbitration practitioners in Africa and how they can play a pivotal role in settling commercial and business disputes. Besides, it was indeed a momentous occasion to identify challenges inhibiting active visibility of African arbitrators.

But the fundamental question is who has the responsibility (perhaps primary) to change the status quo—which is outwardly short of a desired leverage. The answer is: arbitrators themselves.

Plainly speaking, the arbitration practitioners have duty to make impact and then make a case for governments and other parties to be supportive.

The governments, which have more negotiating power, can be supportive if the arbitration practitioners exert influence in resolving societal problems.

Arbitration practitioners must take a leadership role not only to show that arbitration is one of the most pragmatic approaches to dispute settlement in the contemporary business industry, but also to prove their outstanding prowess.

Undoubtedly, arbitration is widely recognised as the most pragmatic approach in resolving investment-related agreements, namely Bilateral Investment Treaties (BITs) as well as commercial-business-related contracts.

Most of these legal instruments, if not all, contain an arbitration clause. The contracting parties typically agree to seek, in good faith or in a spirit of cooperation, a rapid and equitable solution to any dispute between them concerning the interpretation or application of a particular agreement.

As a consequence, the contracting parties agree to engage in direct and meaningful negotiations to arrive at such solutions. If the parties cannot reach an agreement within prescribed timeframe the dispute would be referred to relevant arbitral tribunal, which reflects the choice of the parties.

Africa isn’t void of arbitration talents. There’s rather a question of perception and mistrust among us—Africans—towards fellow Africans that aren’t as perfect as non-Africans, especially those from the West. This mindset has to be discarded so as to move forward and make impact.

In fact, arbitration in business disputes continues to grow annually across the African continent. Today, there’re six major African arbitration institutions: the Cairo Regional Centre for International Commercial Arbitration (CRCICA), the Kigali International Arbitration Centre (KIAC), the Nairobi Centre for International Arbitration (NCIA), the Arbitration Foundation of Southern Africa (AFSA), the Common Court of Justice and Arbitration (CCJA), and the East African Court of Justice (EACJ).

Broadly speaking, nobody would underestimate significant leverage these arbitration centres can make if the arbitrators themselves were able to convince African governments that they’re in a better position to handle commercial and business disputes than anyone beyond the continent.

As a matter of commitment, the majority of African countries have adhered to the New York Arbitration Convention, which is one of the key instruments in international arbitration.

The New York convention applies to the recognition and enforcement of foreign arbitral awards and the referral by a court to arbitration. Additionally, it requires State parties to give full effect to arbitration agreements by requiring courts to deny the parties access to court in contravention of their agreement to refer the matter to an arbitral tribunal.

At least 38 African countries, including Rwanda, have subscribed to it, while 48 African countries have signed the International Centre for Settlement of Investment Disputes (ICSID),which is an international arbitration institution established in 1965 for legal dispute resolution and conciliation between international investors.

The time is ripe for African arbitrators, by support of governments, to practise what they preach. Who can trust African arbitrators if they aren’t given chance to demonstrate their competences?

Though it remains a choice of parties in dispute, who to arbitrate their cases, Africans must understand that Africans are well acquainted with the realities of Africans and thus they’re better positioned to handle them not only professionally but more pragmatically.

A lesson could be drawn from Singapore where a half of arbitral cases adjudicated in Singapore are handled by Singaporeans. Inter-African/intra-African disputes ought to be primarily entertained by competent African arbitrators.

There have been a lot of critism that it’s unthinkable how a continent [Africa] with more than 1.28 billion people cannot offer qualified practitioners and arbitrators. In as much as Africa faces a myriad of problems such as political, economic and social instabilities, a positive course of action must be taken to resolve those issues that are resolvable.

African systems must acknowledge the need to maintain rich-talented arbitrators; and enable them to have many changes to broaden their skills. Arbitrators need to empathise symbiotic cooperation, which would perhaps increase their visibility.

It is equally important to admit the lack of visibility of African arbitrators due to limited pool of their strengths.

African law firms or arbitrators mustn’t be confined to issues concerning Africans, but also to global issues. Why not? Once again, let’s all avoid assumptions that international law firms are far better than local law firms or arbitrators.

Once this wrong presupposition is over, perhaps the visibility of African arbitrators will have a desired leverage in matters that affect Africans.

The writer is a lawyer.      

The views expressed in this article are of the author.

 

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