African arbitration association is a welcome initiative

Dr Fidèle Masengo, the executive director of KIAC. File.

In several conferences held in Africa on arbitration, a common reiteration has been to establish an agency that can promote international arbitration and other forms of international dispute resolution on the African continent.

Now the dream has come true; just recently, the African Arbitration Association (AfAA) was established. Under its constitution adopted on 18 June, 2018, AfAA is a non-profit association that does not administer arbitrations but will act as the platform for African international arbitration practitioners and African arbitration institutions within the African continent to enhance the capacity of African parties, institutions and practitioners.

Undoubtedly, arbitration is recognised as the most effective means of dispute settlement in a business world. Arbitration in dispute settlement is a very important clause in international and domestic commercial or business-related transactions. Hopefully, the AfAA will play a key role in limiting the referral of African disputes to European arbitral authorities for settlement which is ludicrously costly.

In today’s business world, arbitration ensures confidence to local and foreign investors. Foreign investors want to have a guarantee for their investments, by having a credible dispute settlement mechanism.

This is one of the major clauses in local contracts and the Bilateral Investment Agreements (BITs).For example, most Bilateral Investment Treaties and Public-Private Partnerships (PPPs) make a referral for dispute settlement to International Court of Arbitration, known as International Chamber of Commerce, which is regarded as the world business organisation, and has been seen as a model or perhaps a super model. 

According to its article 1, AfAA will “act as a reference point for information concerning activities in international arbitration and alternative dispute resolution within the African continent; increase coordination amongst its members in respect of Africa-related international arbitration and alternative dispute resolution activities; provide greater access to information about international arbitration and alternative dispute resolution in Africa; promote African international arbitration practitioners and African arbitration institutions within and outside the African continent; facilitate and encourage the appointment of African international arbitration practitioners and the use of African arbitration institutions; advance the use of international arbitration and alternative dispute resolution as effective methods of dispute resolution of Africa-related transactions and disputes; support the provision of technical assistance, awareness-raising and capacity-building activities to African governments in order to assist them in their task of strengthening the legislative and judicial frameworks in the field of arbitration and other means of dispute resolution; and enhance awareness of existing capacity-building initiatives, to increase coordination in delivering technical assistance and capacity-building activities, and to enhance cooperation among international and regional organisations, arbitral institutions, academic institutions and professional associations throughout the African continent.”

Interestingly, the AfAA will be headquartered in Kigali, Rwanda. The AfAA must be at the centre of galvanising African arbitral institutions in settling commercial and business disputes that concern Africans. In my view, the AfAA will be a catalyst towards visibility of African arbitrators. A window of opportunity that has been lacking in Africa.

It is now upon African arbitration practitioners to take the advantage of AfAA to make impact in terms of demonstrating their skills so as to win the support and confidence of African governments, individuals and companies. Of course, these stakeholders have been trusting profoundly the arbitration institutions based mainly in Europe or elsewhere outside Africa.

Outwardly, Africa has long been seen as lacking arbitration talents. It is quite important to change this wrong presupposition, and give chances to African arbitrators, who are well knowledgeable with Africa’s commercial and business dynamics. This mindset must be changed. Luckily, 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).

With these institutions, nobody would doubt the impact they can make across the continent. Establishment of AfAA is a watershed moment for African arbitrators to leverage what they can. Though it is a choice of parties to choose who should arbitrate their cases, Africans must understand that they are well acquainted with the realities of Africans than anyone else outside Africa.

It has been unimaginable for Africa, with more than 1.28 billion people, that it couldn’t offer qualified practitioners and arbitrators. It is quite absurd if Africa’s problems can be associated with inability to have smart arbitrators. Indeed, it is upon Africans to do enough to maintain rich-talented arbitrators. There’s, however, a need to synergise efforts of African arbitration institutions through AfAA to achieve the organisation’s objective. Obviously, this strategy will enhance the leverage and visibility of African arbitrators.

The African arbitration umbrella [AfAA] is an initiative of Africans that need to be fully supported by all stakeholders, as a mechanism for Africa to solve its own problems. It goes without saying, acting in an association is more impactful than when an arbitration institution would act individually to position itself. Indeed, the AfAA is a welcome initiative, which, in my view, reflects the philosophy of Pan-Africanism.

 

The writer is a law expert.

The views expressed in this article are of the author.

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