AFSA AND THE ASSOCIATION OF ARBITRATORS JOIN HANDS TO PROVIDE EXCELLENCE IN DISPUTE RESOLUTION IN AFRICA

Transcription

1 February 2015 Work Official Newsletter of The Arbitration Foundation of Southern Africa AFSA AND THE ASSOCIATION OF ARBITRATORS JOIN HANDS TO PROVIDE EXCELLENCE IN DISPUTE RESOLUTION IN AFRICA Advocate Patrick Lane SC, appointed by AFSA and the AOA as the independent Chairman of Africa ADR. An exciting development in the past year was the agreement reached by The Arbitration Foundation of Southern Africa (AFSA) and the Association of Arbitrators (AOA) to join hands in ensuring that investors in Africa have a credible arbitral system and a proper mechanism for the resolution of international and regional disputes. Africa offers huge investment potential and investors are entering into countless commercial contracts every day. In this booming business environment disputes are inevitable and when a dispute arises, investors require a safety net which allows them to resolve disputes fast and effectively and to be in a position to enforce their rights and obligations when doing so. As leading arbitral institutions in South Africa, both AFSA and the AOA agreed to work together to fund, develop and promote Africa ADR to ensure that investors had access to an arbitral body of regional and international arbitrators with profound knowledge and insight as to the way in which business works in Africa and the difficulties that Africa may face in resolving commercial disputes. Continued on page 2 The Arbitration Foundation of Southern Africa NPC Registration no. 1996/007496/08 Maisels Chambers, 4 Protea Place, Sandton P O Box , Benmore, 2010 Docex 143 Randburg Tel: Fax: info@arbitration.co.za Branch Offices Cape Town Durban / Pietermaritzburg Pretoria / Limpopo

2 From page 1 AFSA AND THE ASSOCIATION OF ARBITRATORS JOIN HANDS TO PROVIDE EXCELLENCE IN DISPUTE RESOLUTION IN AFRICA Together these two established dispute resolution institutions have access to networks in Africa; to business, to accounting and to legal firms that span across Africa and to carefully selected arbitrators from Africa as well as internationally. Advocate Patrick Lane SC, with his extensive knowledge and experience of international arbitration, was appointed as the independent Chairman of Africa ADR to lead and direct this exciting joint venture between AFSA and the AOA. Patrick Lane comments that it is internationally accepted that arbitration and other forms of dispute resolution work best when a well resourced, neutral and credible arbitral body administers the process. To be acceptable in the international arbitration world, a country must choose to sign up to the obligations of the New York Convention. This ensures that the courts will enforce and will recognise arbitration awards made in foreign countries. A country must also have appropriate legislation as a framework to allow it to become a welcoming destination for international arbitration. South Africa, unlike many countries in Africa, is already a signatory to the New York Convention and AFSA and the AOA will cooperate with experts and interested parties to ensure that South Africa will in the immediate future have a legal framework which incorporates the UNCITRAL model law. This will undoubtedly make South Africa the ideal venue as a host country for arbitrations as South Africa offers not only a superb infrastructure, but also convenient flights to Africa and the rest of the world, well equipped venues and international standards in dispute resolution. To be acceptable in the international arbitration world, a country must choose to sign up to the obligations of the New York Convention. This ensures that the courts will enforce and will recognise arbitration awards made in foreign countries. A country must also have appropriate legislation as a framework to allow it to become a welcoming destination for international arbitration. The Africa ADR rules are designed both with an eye to international best practice and with an eye to the particular needs of the continent. both the conventional international arbitration and a simplified counterpart in which a single arbitrator and not a tribunal of three can dispose of matters which do not justify the cost or the involvement of a larger tribunal. The rules also allow the arbitrators to adopt whatever language is the most conducive to the arbitration. Both administered and ad hoc arbitrations are catered for. The arbitral process starts with an arbitration clause and the first step for all parties to any trade agreement is the inclusion of a relevant arbitration clause in all commercial contracts, identifying Africa ADR as the arbitral authority to which the resolution of the dispute is entrusted. To obtain the clauses recommended for insertion in cross border commercial contracts, please contact: africa-adr@vodamail.co.za The Africa ADR rules are designed both with an eye to international best practice and with an eye to the particular needs of the continent. The rules can accommodate As leading arbitral institutions in South Africa, both AFSA and the AOA agreed to work together to fund, develop and promote Africa ADR to ensure that investors had access to an arbitral body of regional and international arbitrators with profound knowledge and insight as to the way in which business works in Africa and the difficulties that Africa may face in resolving commercial disputes. 2

3 BEST PERFORMING CLASS EVER In March 2014 the sought after AFSA Advanced Certificate in Dispute Resolution was awarded to 37 students, 19 of which passed cum laude. This was the best performing class ever. AFSA and the University of Pretoria had succeeded in maintaining an exceptionally high standard in ADR training. Congratulations to those who passed cum laude: The course is accredited by and offered under the aegis of the University of Pretoria. It is aimed at building a genuine body of expertise in ADR in South Africa and further afield. Prof. André Boraine, Dean of the Faculty of Law at the University of Pretoria, said that the relationship between AFSA and the University of Pretoria was a long standing one and that through this partnership AFSA and the University of Pretoria had succeeded in maintaining an exceptionally high standard in ADR training. The course is presented by seasoned practitioners in the field and enables graduates to master essential skills in all aspects of dispute resolution which will be of enormous value to them, their employers and their clients. The course is internationally recognised by the Chartered Institute of Directors in the UK. AFSA graduates with legal qualifications are eligible to become members of the Chartered Institute. For information about the course, contact Selina Tshabala selina@arbitration.co.za Andriette Dekker Willem du Plessis Tasneem Khan Ghandi Badela Nontombi Motsa Okeletsang Mookeletsi Roseanne O Connell Melissa Cronje Wilhelmina Germishuys Firhaad Khan Andrea Kollenberg Trevor Chambers Jose Neves Peter Watt Rouxlene van Zyl Steve Hochfeld Julius Wehncke Rudolf Bezuidenhout Repeat Molea 3

4 AFSA CAPE TOWN in focus NEW CHAIRMAN FOR CAPE TOWN MANAGEMENT COMMITTEE JACQUI NAUMANN Advocate Sven Olivier SC, who also heads up the Alternative Dispute Resolution Committee of the Cape Bar, took over as the Cape Region s new chairman. After many years of outstanding service as Chairman of the Management Committee of AFSA Cape, Les Rose- Innes stepped down as chairman in the last quarter of 2014 while Pieter van Eeden, after almost a decade of service, resigned from the AFSA Cape Management Committee earlier in the year. Sven Olivier SC, who also heads up the Alternative Dispute Resolution Committee of the Cape Bar, took over as the Cape Region s new chairman. He was joined by Albert Mooij of the Cape Bar, Peter Whelan from Bowman Gilfillan and Roy Walligora of KPMG. Jacqui with Albert Mooij Jacqui Naumann joined AFSA Cape in April As Branch Manager she is responsible for administration of disputes and appeals in the region as well as for all activities relating to the running of the branch, including financial reporting, regional marketing, public relations and coordination of training courses and workshops. She has a thorough understanding of alternative dispute resolution processes and procedures and will gladly assist parties interested in resolving disputes. 4

5 COMMERCIAL ARBITRATION COURSE HELD IN CAPE TOWN During the last week of June 2014, commercial arbitration training was offered to interested parties in the Cape Town region. The Commercial Arbitration Module forms part of the full Advanced Certificate course usually presented in Sandton. The course was very well received and sparked considerable interest in the full certificate course. The Commercial Arbitration Module was presented by Advocate Michael Kuper SC, Chairman of the Arbitration Foundation of Southern Africa, and Charles Cohen. Jacqui Naumann, Manager of AFSA Cape says given that many people interested in the course could not attend, we have decided to repeat the exercise again in mid The dates should be finalised by the end of February Interested parties may obtain further information from Jacqui Naumann by contacting her at: SEMINAR ON THE DRAFTING OF DISPUTE RESOLUTION CLAUSES FOR DOMESTIC AND CROSS BORDER COMMERCIAL CONTRACTS Albert Mooij shared examples of poorly drafted and/or unenforceable ADR clauses which AFSA had come across in recent years and had resulted in unnecessary costs and delays in the resolution of disputes. On the 6 th of November 2014 AFSA Cape, in association with Bowman Gilfillan, hosted a seminar at Bowman Gilfillan s offices in Cape Town. The seminar attracted considerable interest from commercial lawyers and associates, JSE listed companies and from corporate groups in-house counsel. Prof David Butler presented an informative paper on why disputants should choose arbitration as a dispute resolution mechanism and dealt with choosing the appropriate rules and the seat of arbitration He also explained the pros and cons of ad hoc versus administered arbitrations and emphasised the importance of drafting a suitable ADR clause. Albert Mooij shared examples of poorly drafted and/or unenforceable ADR clauses which AFSA had come across in recent years and had resulted in unnecessary costs and delays in the resolution of disputes. Advocate Patrick Lane SC, as Chairman of Africa ADR, spoke about the establishment of Africa ADR to resolve cross border disputes arising in Africa. Africa ADR, a joint venture between AFSA and the Association of Arbitrators, provides a credible arbitral system for the business and investment community, offering a proper mechanism for the resolution of cross border disputes which is both cost effective and efficient. He emphasised the importance of having a well written dispute resolution clause in all cross border contracts. The Africa ADR clauses have been drafted with great care and the inclusion of such a clause is the responsibility of the parties and their advisors. The clauses recommended by Africa ADR can be obtained by contacting: africa-adr@vodamail.co.za 5

6 FIRST CHINA-AFRICA LEGAL EXCHANGE PROGRAM FOR YOUNG LEGAL PROFESSIONALS Michael Kuper, Isaac Fenyane and Kevin Markham. In September 2014, Isaac Fenyane attended the first four week course for young legal professionals held in Beijing, China. The purpose of the course was to encourage mutual understanding and to promote practical co-operation in the legal field between China and Africa. In April 2014 AFSA received an invitation from the China Law Society in Beijing to nominate two candidates, of which one would be selected by the China Law Society, to attend the first four week course for Young Legal Professionals under the age of 45. The course was to be held at the Beijing Foreign Studies University in September and the China Law Society offered to cover all costs for the chosen candidate for the four week period, excluding the cost of the international air ticket. The nominated candidates were required to prepare two papers from a list of topics for submission to the China Law Society. AFSA approached all its Founding Members to put forward names of potential candidates and in June, Isaac Fenyane, nominated by ENS, was informed by the China Law Society that he had been chosen as the successful candidate. Isaac is a director at ENSafrica in the corporate commercial department and specialises in general corporate and commercial law, mergers and acquisitions and corporate finance. Isaac Fenyane reported as follows: The program comprised 30 participants I found the program very enriching and learnt a great deal through open interactions with the lecturers and fellow participants. The organisers really went out of their way to make our stay in China a memorable experience. 6

7 2014 A BUSY YEAR FOR AFSA from various African countries and it entailed two lectures every week day from 09h00 to 12h00 and then from 14h00 to 17h00. The lectures were aimed at giving us a basic introduction to the Chinese legal system and topics such as China s constitutional law, enterprise law, financial law, laws relating to foreign direct investment in China and Chinese legal practice, were covered. The lectures were offered by leading professors from various universities in China and alternated with seminars and visits to legal and business institutions. At one of the seminars, Isaac had to present a paper on the risks of doing business in Africa and the mitigation of such risks. I found the program very enriching and learnt a great deal through open interactions with the lecturers and fellow participants. The organisers really went out of their way to make our stay in China a memorable experience. On weekends we were taken to some of China s tourist attractions in and around Beijing, such as the Great Wall, the Forbidden City, the Summer Palace and Tiananmen Square. It was indeed a busy year for AFSA and Isabel Terk, AFSA s National Registrar, comments that in 2014 the AFSA team administered matters referred to AFSA by both small and large firms of attorneys, providing an extremely valuable service across a wide spectrum. In many instances matters referred to AFSA for arbitration were in respect of claims for many millions of rand. In larger matters the parties tended to agree on the choice of arbitrator/s, being senior counsel and frequently retired judges. ARBITRATION VENUES IN SANDTON AFSA s arbitration venues are conveniently situated in the heart of the Sandton business district and within close proximity to the Gautrain station. Arbitration rooms and shoulder rooms are air conditioned and offer white boards, lecterns, flip charts and data projectors. Secure parking, at no additional cost, is readily available and a coffee shop offering snacks and light lunches is conveniently situated on the ground floor level of the building. For further information and room bookings, interested parties can contact Selina Tshabalala on or selina@arbitration.co.za. In regard to the general population I found the Chinese people to be very hospitable, peace-loving and hardworking which added to my wonderful experience in China. Other than missing my family and friends, I also missed Facebook, Google and of course the blue African skies, as China faces a huge problem of industrial pollution. I am truly grateful to AFSA and the China Law Society for affording me the opportunity to participate in the Program and equally grateful to Professor Michael Katz and Kevin Markham who recommended my nomination to AFSA. 7

8 CO-OPERATION WITH CHINA CONFERENCES IN CHINA As part of the bridge-building and cooperation initiative between China and Africa, AFSA was invited to nominate a representative, as the guest of the China Law Society, to participate in two conferences held in China and to present a paper on Alternative Dispute Resolution Mechanisms in South Africa. Delegates from other African countries were also invited to attend the conferences and to participate in the proceedings. In September Deline Beukes presented a paper at conferences in Beijing and Shanghai, both attended by approximately 200 delegates. In the paper she outlined the role of AFSA and Africa ADR in providing both domestic and international dispute resolution services to the business world in South Africa and to investors in Africa. She met with various players in the legal, business and academic fields in China and paid visits to relevant government agencies, judicial organs, the China (Shanghai) Pilot Free Zone and China-Africa related enterprises and trade parks. Deline commented that the Chinese delegates at both conferences expressed great interest in alternative dispute resolution in South Africa and in co-operating with AFSA and Africa ADR. The Chinese delegates at both conferences expressed great interest in alternative dispute resolution in South Africa and in co-operating with AFSA and Africa ADR. They were also interested in learning more about the legal system in South Africa and the services offered by legal firms to potential investors in Africa. MEMORANDUM OF MUTUAL COOPERATION SIGNED In November 2014 a Chinese delegation, led by Mr. Gu Zhaomin, Director of Overseas Liaison of the China Law Society, paid a visit to AFSA in Johannesburg and a meeting was arranged for members of the delegation to also meet with senior representatives of leading legal firms and founding members of AFSA. The chairman of Africa ADR, Patrick Lane, also attended the meeting. Representatives of legal and accounting firms were afforded the opportunity to explain the depth and scope of the legal services available to those doing business in Africa and the networks that had been established across Africa. A Memorandum of Mutual Cooperation between AFSA and the China Law Society was signed on this occasion in order to foster dialogue and to exchange knowledge and experience between the legal professions of China and South Africa. The delegation was also introduced to how the legal system in South Africa functions. A Memorandum of Mutual Cooperation between AFSA and the China Law Society was signed on this occasion in order to foster dialogue and to exchange knowledge and experience between the legal professions of China and South Africa. The cooperation agreement includes the hosting of delegations, participation in training programs and seminars and the sharing of information on topics of interest on an ongoing basis. Mr.Gu Zhaomin announced at the meeting that the China Law Society planned to hold the next FOCAC (Forum of China Africa Cooperation) meeting in South Africa in The Arbitration Foundation of Southern Africa NPC Manco: LP Dicker, PM Mtshaulana SC, BE Abrahams, J Witts-Hewinson, S McCafferty, URD Mansingh, PJ Pretorius SC, PMM Lane SC, R Wakefield, S Voigt, P Louw SC, TM Madima SC, S Lebala SC, P Watt, S Hochfeld, L Rose-Innes SC Directors: MD Kuper SC (chair), RS Hislop