WHAT HOLISTIC APPROACHES CAN THE AFRICA REGION ADOPT TO OVERCOME THE CHALLENGES AND ISSSUES IT FACES WITH ADR? BY FUNKE ADEKOYA, SAN

Size: px

Start display at page:

Download "WHAT HOLISTIC APPROACHES CAN THE AFRICA REGION ADOPT TO OVERCOME THE CHALLENGES AND ISSSUES IT FACES WITH ADR? BY FUNKE ADEKOYA, SAN"

Jocelyn Russell
6 years ago
Views:

1 WHAT HOLISTIC APPROACHES CAN THE AFRICA REGION ADOPT TO OVERCOME THE CHALLENGES AND ISSSUES IT FACES WITH ADR? BY FUNKE ADEKOYA, SAN ǼLEX Legal Practitioners & Arbitrators

2 2 What Challenges? While ADR continues to underpin dispute resolution in Africa s informal and communal life, when it comes to international commerce, Africa s contribution has been more muted. This is because: High value African based disputes are going offshore. African Arbitrators and counsel are not being appointed in disputes arising from Africa. Perception of lack of legal capacity on the continent.

3 3 Arbitration Is A Resource African countries need to be aware that Arbitration is a resource in the same way crude oil is for Nigeria and copper for Zambia; it is to be exploited and protected. Arbitration can have huge financial impacts on a country [such as in hospitality services industry - hotels, support services, fees to counsel and arbitrators.] According to a Global Arbitration Review Survey of Hearing Centres Canada has built an ultra modern arbitration venue known as Arbitration Place in Toronto...Its backers have calculated that arbitration brings C$256 million to the local economy, C$100 million more than the Toronto film festival the report concludes.

4 Consequently African governments and corporations must put in place measures to promote and protect Africa s arbitration resources. African governments and corporations must increasingly insist that the governing law of their contracts will be laws of the contracting African party. A corollary of the foregoing will be the amending and finetuning of domestic laws to meet international best practices. The BLP report indicates that parties selected a seat that was in the same jurisdiction as the selected governing law of the contract in more than 75% of cases. 21% of respondents said that this occurred in more than 90% of transactions. 4

5 5 Protectionism is NOT the answer. 2 Cases are presently before Nigerian courts challenging awards based on foreign law firms participation in domestic arbitration. This demonstrates increasing uneasiness as to incursion by non-nigerians into the arbitration space in Nigeria; protectionism, you might say protecting our turf? In the long run, it is doubtful if it is in Nigeria s best interests that foreign participation in domestic arbitration is prohibited.

6 6 Suggested Approaches To Overcome The Challenges -Advocacy Advocacy African CIARB branches, in-country can take advocacy on arbitrating in Africa by Africans to their governments, Ministries of Justice, corporations, chambers of commerce and other relevant professional and business associations. Pan African Lawyers Union (PALU) can take advocacy on these issues to the African Union and regional economic unions.

7 7 Suggested Approaches To Overcome The Challenges - Training There must be training in investment treaty arbitration, as change and focus at the level of international economic activity is moving South South. Africa should also train to have capacity to handle home grown investment disputes before ICSID and elsewhere. The world is looking at Africa as the last frontier, with increasing opportunities for foreign direct investment. It is speculated that within the next years there will be increased investment disputes coming out of Africa.

8 Africa must train and retrain to increase capacity in the area of investment disputes. Bilateral investment treaties a Kluwer 2012 report on African participation in ICSID proceedings reports that 24% of ICSID proceedings till date translating to 84 cases have involved African parties. Of this number Egypt alone has been involved in 16, and the report attributes this number to Egypt s BITs which have had the effect of encouraging investment. It has been reported that African arbitrations as of 2013 made up over 20% of all ICSID claims and with investment in the continent growing, it is expected that more ICSID claims will follow. 8

9 9 Conclusion Emphasis on training across Africa The BLP report states that 74% of persons and corporations surveyed indicated that the availability of a pool of arbitrators at the seat of arbitration was important in choosing a seat of arbitration. While Africa is still feeling her way around ADR, it has nonetheless made giant strides forward as the evolving culture of court annexed ADR and the setting up of regional centres of arbitration show. We see that some of the approaches set out above are driving reforms and it is hoped that ADR in the near future will blossom, ensuring greater involvement of Africans in the resolution of African arbitration disputes.

10 10 Thank You

CURRENT COMMERCIAL ARBITRATION PRACTICE AND DEVELOPMENTS IN KENYA AND EAST AFRICA

CURRENT COMMERCIAL ARBITRATION PRACTICE AND DEVELOPMENTS IN KENYA AND EAST AFRICA John M Ohaga, FCIArb. Managing Partner, TripleOKLaw LLP, Board Member, Nairobi Centre for International Arbitration, Trustee-