Alternative Dispute Resolution Services in West Africa

Transcription

1 Alternative Dispute Resolution Services in West Africa A Guide for Investors Bénin Burkina Faso Cameroon Côte d Ivoire Ghana Mali Nigeria Sénégal Togo Regional Institutions With funding from the United States Agency for International Development 2003 Commercial Law Development Program US Department of Commerce

2 Table of Contents Foreword 3 Acknowledgments 4 Part I: Why ADR Services Matter for Investors in West Africa 5 Part II: Applicable International Law 6 Part III: Alternative Dispute Resolution Services by Country 10 Bénin 11 Burkina Faso 12 Cameroon 14 Côte d Ivoire 16 Ghana 17 Mali 20 Nigeria 22 Sénégal 26 Togo 27 Part IV: Regional Institutions 29 Conclusion 31 Annex A: ADR Resources i 2003 Commercial Law Development Program, US Department of Commerce Tanya Southerland and Gwenann Seznec created this guide with funds from the United States Agency for International Development. It may be freely copied, in whole or in part, so long as this notice is reproduced on all copies. 2

3 Foreword Newsflash: Alternative Dispute Resolution services are available in West Africa to resolve commercial disputes! Alternative dispute resolution (ADR) is used around the world by businesses to resolve their commercial disputes. In the United States, nearly 100 percent of U.S. corporations use ADR, with 80 percent indicating that ADR is a more satisfactory process than litigation. 1 ADR is applied in all industries and invoked in a wide spectrum of disputes, from corporate finance to employment. At the International Centre for Settlement of Investment Disputes (ICSID), 56 cases were pending as of July 2003, 10 of which involved African states. The Permanent Court of Arbitration in The Hague has experienced a dramatic increase in caseload in the last five years, including important cases of dispute resolution on the African continent. Contrary to widespread belief, venues for ADR are increasingly available in West Africa. In West Africa alone, there are over 16 regional and local ADR centers serving investors and the community and over 65 law firms offering ADR services. A further breakdown of ADR trends in West Africa shows the current range of services and future possibilities: There are over 16 regional and national ADR centers in West Africa serving investors and the community. 2 regional ADR centers, 6 existing national ADR centers, 6 planned ADR centers, at least 8 community centers providing mediation and conciliation services to individuals, over 65 private law firms offering ADR services, and 10 institutions of higher education offering some ADR training. Arbitration centers exist in Cameroon, Côte d Ivoire, Ghana, Nigeria, and Sénégal. The less advanced countries of Bénin, Burkina Faso, Mali, and Togo all are showing promise in their efforts to create the building blocks of a more institutionalized ADR infrastructure. Intended for use by investors and other commercial operators, this guide lays out user-friendly information regarding these venues and elaborates on the aforementioned trends in ADR service availability. Part I of the guide offers a background on why ADR must be made available within West Africa. In Part II, the guide analyzes the applicable international law governing the use of ADR within the region. In Part III, the guide examines ADR services available in Bénin, Burkina Faso, Cameroon, Côte d Ivoire, Ghana, Mali, Nigeria, Sénégal and Togo. In Part IV, the guide explores the regional centers: OHADA s Common Court of Justice and Arbitration located in Abidjan, Côte d Ivoire, and the Regional Commercial Arbitration Centre located in Lagos, Nigeria. The Conclusion provides an assessment of ADR services in West Africa, and discusses the conditions necessary for the success of ADR within the region. Annex A provides contact information for the individual providers and centers discussed in this guide. 1 David B. Lipsky and Ronald L. Seeber, The Use of ADR in U.S. Corporations: Executive Summary. Cornell University Foundation for the Prevention and Early Resolution of Conflict (PERC) and PricewaterhouseCoopers LLP:

4 Acknowledgments This guide represents the work of the Commercial Law Development Program (CLDP) at the United States Department of Commerce. A collaborative effort, this guide could not have been completed without major substantive contributions from key ADR practitioners and institutes located throughout West Africa CLDP is grateful to and particularly cognizant of the efforts made by the following people who attended an April 2003 meeting in Accra, Ghana, to discuss the state of alternative dispute resolution in West Africa: Innocent Adjenughure (Nigeria), Kehinde Aina (Nigeria), Nene Amegatcher (Ghana), Amazu Asouzu (King s College London), Oliver Behle (Cameroon), Bintou Boly (Burkina Faso), Jean Claude Bonzi (Burkina Faso), Charles Komivi Tchapo Botokro (Togo), Abdon Deguenon (Bénin), Alioune Badara Diallo (Mali), Amadou Dieng (Sénégal), Emmanuel Dike (Regional Centre for International Commercial Arbitration, Nigeria), Gaston Kenfack Douajni (Cameroon), Séverin Hounnou (Bénin), Margaret Insaidoo (Ghana), Jacques M Bosso (CCJA), and Djeneba Diop Sidibe (Mali). Thanks also go to Samuel Asante (Ghana), Georgette François (Ghana), Ousmanou Sadjo (GICAM, Cameroon), Filiga Michel Sawadogo (University of Ouagadougou, Burkina Faso), and Timothée Somé (Director, ERSUMA) for their substantive contributions to the guide. The aforementioned individuals were both the inspiration for and the primary contributors to this guide. It is our hope that with the production of this guide, they will witness an appropriate increase in their caseloads from investors and commercial operators seeking their ADR services to resolve commercial disputes. CLDP wishes to thank the following individuals and organizations: Homer La Rue, who served as an advisor on several of CLDP s ADR activities in West Africa; the United States Agency for International Development (USAID), without the financial support of which the production of this guide would not have been possible; the Corporate Council on Africa s West Africa International Business Linkages (WAIBL) program for agreeing to post this guide on their website; and United States embassies in Africa and African embassies in the United States for what CLDP hopes will be widespread distribution of the guide. Finally, CLDP offers heartfelt and sincere thanks to Gwenann Seznec of the University of Virginia School of Law, who, as a volunteer intern, spent most of her summer working on this document. Tanya Southerland Managing Attorney for West Africa 4

5 Part I Why ADR Services Matter for Investors in West Africa As in many areas of the world, judicial systems in West Africa are not equipped to handle the multitude of cases brought before them, particularly as pertains to commercial disputes. In fact, sizeable caseloads leave many West African courts over-extended and under-budgeted. Some investors are merely inconvenienced by the existence of slow, overburdened judicial systems in West Africa. These investors invest in the region, and when a dispute arises, they resort to arbitration and alternative dispute resolution (ADR) fora outside the region. Other investors are deterred outright from investing in the region due to the perceived lack of timely and affordable dispute resolution options located in the region. ADR is useful in resolving commercial disputes by providing speedier, enforceable decisions through arbitration, mediation, or conciliation mechanisms. The presence of cost-effective and predictable ADR mechanisms capable of resolving complex commercial disputes helps to bolster the confidence of commercial operators interested in the West African region and therefore stimulates trade and investment both internationally and locally. CLDP s Contributions to the Development of ADR Use and Practice Over the past three years, CLDP has built upon bilateral efforts by other U.S. Government partners and intra-regional ADR partners in its development of a regional alternative dispute resolution program. The program seeks to institutionalize the practice and use of ADR for the resolution of commercial disputes throughout West Africa and to ensure that the practice of ADR in West Africa conforms to internationally-accepted standards. The regional synergy created by CLDP s program is impressive: Sénégal is working with Ghana on how to form an ADR professional association; Nigeria established a multi-door courthouse; Ghana is considering replicating Nigeria s multi-door courthouse; Mali s Chamber of Commerce has asked Sénégal s Chamber of Commerce how it can improve its ADR Center s institutional capacity; and OHADA s CCJA is better understood throughout its member states. In addition, CLDP is enabling up to twenty ADR practitioners from West Africa to receive certified training in arbitration in the United States to improve both their ADR technical skills and their credibility visà-vis foreign investors involved in commercial disputes in West Africa. CLDP will then help these practitioners to develop a core curriculum on arbitration to teach upon their return to the West Africa region. Now, CLDP s Alternative Dispute Resolution Services in West Africa: A Guide for Investors seeks to inform investors about these and other recent developments. This guide will increase options for informed investors, who can then use the burgeoning local ADR services to resolve disputes instead of having to use foreign ADR fora or local courts. 5

6 Part II Applicable International Law International Agreements on ADR The enabling environment for the use and practice of ADR and the enforcement of arbitral awards in West Africa is structured, in part, by the international agreements outlined briefly in Tables 1 and 2 and discussed in further detail below. As Table 1 demonstrates, both multilateral agreements, such as the New York Convention and the Washington Convention, and bilateral investment treaties (BITs), such as the U.S.-Cameroon or U.S.-Senegal BITs, influence how ADR is practiced in West Africa. Table 1: International Agreements Influencing how ADR is practiced and how arbitral awards are enforced in West Africa Agreement Action Members New York Convention ICSID (Washington Convention) OHADA United Nations Commission on International Trade Law U.S. Bilateral Investment Treaties Enables enforcement of arbitral awards in any member state. Enables enforcement of arbitral awards in any member state. Provides a forum for conciliation and arbitration of disputes. Establishes rules of procedure. Authorizes practice and use of ADR. Enables enforcement of arbitral awards in any member state. Provides a forum for conciliation and arbitration of disputes. Establishes rules of procedure. Establishes rules of procedure. Produced a model law on international commercial arbitration for countries seeking to adopt internationally understood arbitration laws. Authorizes U.S. investors to submit an investment dispute to international arbitration. 147 nations, including all those treated in this guide. 154 nations, including all those treated in this guide. 16 nations, including Bénin, Burkina Faso, Cameroon, Côte d Ivoire, Mali, Sénégal, and Togo. UNCITRAL Rules and Law used in a large number of jurisdictions including Ghana and Nigeria. The U.S. has BITs with 44 nations including Cameroon and Senegal. Table 1 illustrates that the pre-existing international framework that governs ADR use and the enforcement of arbitral awards globally is already applicable in the West African nations discussed in this guide. In addition to membership in the nearly universal New York and Washington Conventions, the Francophone countries of West Africa have entered into two local agreements that enable ADR use through the adoption of the OHADA Uniform Arbitration Act and membership in CIMA. The agreements laid out in Table 1 are multi-faceted in that they provide not only for the practice of one or more ADR methods, but also for the enforcement of arbitral awards, for rules that 6

7 govern ADR procedures and for venues where such ADR proceedings can take place. Table 2 lays out which agreements treat which topics: Table 2: Subject matter of Agreements Authorizes practice of one or more methods of ADR Enables Enforcement of Arbitral Awards Provides a forum for ADR resolution Provides rules to govern ADR proceedings New York Convention ICSID (Washington Convention) OHADA CIMA BITs UNCITRAL Model Law New York Convention ICSID (Washington Convention) OHADA ICSID (Washington Convention) OHADA (CCJA) ICSID (Washington Convention) OHADA UNCITRAL More information on the respective agreements is provided below. The New York Convention The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which was signed in New York in June 1958 and entered into force in June 1959, allows a party to the convention to enforce an arbitral award in any other party s jurisdiction. Currently, 147 states are party to this convention, including all the West African countries discussed in this guide. ICSID: The Washington Convention The Convention on the Settlement of Investment Disputes between States and Nationals of Other States came into force in 1966 and established the International Centre for Settlement of Investment Disputes (ICSID). ICSID provides a forum for the conciliation and arbitration of disputes between member states and investors who qualify as nationals of other member states. The parties are free to agree to conduct their proceedings at any other place, however, and the Centre has arrangements to be able to conduct ICSID proceedings at other institutions such as the Permanent Court of Arbitration at The Hague and the Regional Arbitration Centres of the Asian-African Legal Consultative Committee at Cairo and Kuala Lumpur. ICSID s Rules of Procedure may not be used at centers not affiliated with ICSID. Whether or not parties to a dispute, all ICSID members are required by the Convention to recognize and enforce ICSID arbitral awards. 154 states, 42 of which are in Africa, have signed the Convention; all West African states discussed in this guide are signatories. Of the 56 cases pending at ICSID as of July 2003, 10 cases involved African states. However, thus far African states are rarely claimants in ICSID proceedings; they are usually respondents in arbitrations. 2 A member of ICSID has the right to nominate neutrals to the ICSID Panel of Conciliators and the Panel of Arbitrators (up to four per panel). Accordingly, most countries discussed in this guide have designated four to eight nationals of their countries as neutrals to one or both of the panels. 2 See Asouzu, Amazu A. International Commercial Arbitration and African States. Cambridge: Cambridge University Press,

8 OHADA The Organization for the Harmonization of Business Law in Africa (OHADA), is a supranational organization established by a treaty signed on October 17, 1993 in Port Louis, Mauritius. OHADA is comprised of 16 sub-saharan African member states: Bénin, Burkina Faso, Cameroon, Central Africa, Comoros, Congo, Côte d Ivoire, Gabon, Guinea, Guinea-Bissau, Equatorial Guinea, Mali, Niger, Sénégal, Chad, Togo. Current members are mostly Francophone nations (with the exception of Guinea-Bissau, a Portuguese-speaking nation, and Equatorial Guinea, a Spanishspeaking nation), though any member state of the African Union may become a member of OHADA. OHADA s purpose is to promote regional integration and economic growth and to ensure a secure legal environment through the harmonization of business law among its member states. The basic instruments for harmonization of national law by OHADA are the Uniform Acts adopted by the Council of Ministers that lay down common rules governing business. Once a Uniform Act comes into force, it overrides all incompatible national law in the member states. The OHADA Uniform Act on Arbitration entered into force in It authorizes the practice of ADR, lays out rules of procedure, provides for the enforcement of arbitral awards in member states, and creates a key regional ADR center: the Common Court for Justice and Arbitration (CCJA), in Abidjan, Cote d Ivoire. For more information on the CCJA, see Regional Institutions discussed in Part IV of this guide. UNCITRAL The United Nations Commission on International Trade Law (UNCITRAL) developed rules of arbitration in 1976 that parties may use to govern the conduct of ad hoc proceedings arising out of their commercial relationship. Some ADR institutes have also adopted and modified the UNCITRAL rules as their institutional rules. UNCITRAL also developed a Model Law on International Commercial Arbitration in The UNCITRAL Model Law is designed to assist States with the reform and modernization of their laws on arbitral procedure so as to take into account the particular features and needs of international commercial arbitration. It has been enacted into law by a large number of jurisdictions from both developed and developing countries including the West African countries of Ghana and Nigeria. Bilateral Investment Treaties Bilateral Investment Treaties (BITs) are generally signed between a developed and a developing country in order to secure higher standards of legal protection and guarantees for investments in those countries. The basic features of BITs include provisions on the scope and definition of foreign investments, admission of investments, fair and equitable treatment, guarantees of free transfer of funds and repatriation of capital and profits, and dispute settlement. Many BIT partners approach the treaties with the dual purpose of protecting their outward investments in, and attracting inward investment from, their co-signatories. 3 U.S. BITs The United States has signed BITs with 44 nations, two of which are included in this guide: Cameroon and Sénégal. These BITs specifically provide U.S. investors with the right to submit an investment dispute with the treaty partner s government to international arbitration. There is no requirement to use that country s domestic courts. Instead, the parties may submit the dispute for 3 UNCTAD Press release: Bilateral Investment Treaties Quintupled During the 1990s, December 15,

9 settlement by binding arbitration to the ICSID Centre or in accordance with UNCITRAL Arbitration Rules. Any other arbitration institution may be acceptable if agreed to by both parties. Inter-African BITs The number of BITs increased dramatically during the 1990s, rising from 385 at the end of the 1980s to a total of 1,857 BITs involving 173 countries at the end of the 1990s. Fueling this growth was the increase in treaties signed between developing countries. 4 In 2001, BITs were signed between nations in the West and Central Africa region under the auspices of the United Nations Conference on Trade and Development (UNCTAD). 5 These BITs show a commitment to providing a predictable and stable legal investment framework, paving the way for increased foreign direct investment (FDI) flows and economic cooperation, and increasing interregional activity. Many of the BITs were signed between Ghana breached the francophone barrier by signing treaties with Bénin, Burkina Faso, and Mauritania. (See Table 3 below.) Table 3: Inter-African BITs Signed, 2001 Country Benin Burkina Faso Cameroon Ghana Mali BITs Signed Belgium-Luxembourg Economic Union, Burkina Faso, Ghana, Mali, Mauritius, Chad, Guinea Belgium-Luxembourg Economic Union, Benin, Chad, Comoros, Ghana, Mauritania Mali, Mauritania, Guinea Benin, Burkina Faso, Mauritania, Mauritius Benin, Cameroon, Chad, Comoros, Guinea A vast majority of BITs concluded during the round contain a possible recourse to arbitration under the ICSID Convention. Under these BITs, submitting a dispute to binding arbitration is sometimes the only possibility for the investor; often, however, a choice is given to the investor between recourse to national courts, arbitration at the ICSID Centre, ad-hoc arbitration following the UNCITRAL rules of procedure, or any other rules and fora that the parties agree to. Very few BITs also include a reference to the OHADA arbitration courts or other facilities of international arbitration available in Africa. Many other BITs have been signed between nations relevant to this ADR guide and other countries. See each country s page in Part III for a list of all BITs signed. Conférence InterAfricaine des Marchés d Assurances (CIMA) CIMA was formed in 1992 by treaty to increase cooperation in and harmonization of the insurance industries in the fourteen member states in Central and West Africa. The CIMA Code promotes conciliation techniques in determining the amount of indemnity in traffic accidents. Member states of CIMA: Bénin, Burkina Faso, Cameroon, Central African Republic, Comores, Congo, Côte d Ivoire, Gabon, Equatorial Guinea, Mali, Niger, Sénégal, Chad, and Togo. 4 Ibid. 5 UNCTAD Press release: 29 Bilateral Investment Treaties Signed by Least Developed Countries in Brussels, May 15,

10 Part III: Alternative Dispute Resolution Services by Country Bénin Burkina Faso Cameroon Côte d Ivoire Ghana Mali Nigeria Sénégal Togo 10

11 BENIN Overview Bénin, a French-speaking country with a population of 6.8 million, is poised to begin the building of an ADR infrastructure. While mediation and conciliation has traditionally been practiced in cases of employment and family law, commercial ADR mechanisms are as yet limited to the cotton industry-specific initiative put forward by the Association Interprofessionelle du Coton (AIC), and ad hoc cases through the Bénin Chamber of Commerce and Industry. The government is supportive of ADR initiatives and has accepted to finance training on commercial arbitration. Arbitration is being practiced on an ad hoc basis by the cotton industry association (AIC), with plans in progress for the establishment of a formal arbitration center for industry-specific disputes. Bénin is home to the OHADA school of magistrature, the Ecole Régionale Supérieure de Magistrature (ERSUMA), in Porto Novo. Students come to the school from all the OHADA member states to learn legal skills including arbitration. See Regional Institutions. Regulatory Framework Under Bénin s labor laws (the Code du travail, law no of 27 January 1998), in the event of labor disputes, parties are forced to find recourse in conciliation; if conciliation fails then the case goes to the courts. Conciliation tribunals are made up of respected village elders who have expertise in areas of employment law. The OHADA Uniform Act on Arbitration has resolved legal conflicts with arbitration that previously existed. Bénin is party to ICSID, the New York Convention, OHADA, and the Code CIMA. Bilateral Investment Treaties (date signed): Switzerland (1966), Germany (1978), United Kingdom (1987), Belgium-Luxembourg (2001), Burkina Faso (2001), Ghana (2001), Mali (2001), Mauritius (2001), Chad (2001), Guinea (2001). ICSID Neutrals Bénin has eight neutrals on the ICSID Panel of Arbitrators and Conciliators: four arbitrators and four conciliators. (see Annex A) Current Practice Operators in the cotton industry in Bénin use ADR through the AIC s arbitration services. Mediation and conciliation techniques are most often used in matrimonial and labor disputes. However, the Chamber of Commerce and Bar Association have been involved in some ad hoc mediations in commercial disputes. Association Interprofessionnelle du Coton (AIC): AIC is a trade association for the cotton industry in Bénin. It offers ad hoc arbitration and mediation between contracting parties and the government. Plans exist for the development of a formal arbitration center for the cotton industry, inspired by OHADA regulations. o Contact Information: Association Interprofessionnelle du Coton (AIC), 06 B.P. 18 Cotonou. Tel: (229) Fax: (229) Chambre de Commerce et d Industrie au Bénin: A Commission on Arbitration has existed in the Bénin Chamber of Commerce for ten years. The Commission has not 11

12 conducted any arbitrations, but does have some experience in mediation and conciliation. The contact person and president is Honorine Feliho, who may be contacted as follows: o Contact Information: Chambre de Commerce et d Industrie au Bénin Arbitrage et Règlements Transactionnels Avenue du Général de GAULLE 01 BP 31 Cotonou Tel : (229) / Fax: (229) Private law firms: Ten private law firms exist that provide arbitration in commercial disputes. See Annex A. CLDP held a training session in Bénin in December 2002 for lawyers, judges, and economic operators in the country. The outcome of the session was to establish a committee to found an ADR center in Cotonou to offer ADR services beyond the cotton industry. Once this center is established, and the cadre of ADR providers is fully trained, the use of ADR by the commercial sector is expected to rise. BURKINA FASO Overview In Burkina Faso, a French-speaking country of 12.6 million people, the political will exists to encourage ADR and the country shows positive activity in this direction. For example, the Chamber of Commerce of Burkina Faso (CCIA-BF) organizes some ad hoc arbitrations upon request, and it has held several educational seminars on ADR in large towns in Burkina Faso, targeting judges, lawyers, legal experts, notaries, and business people. CCIA-BF is also planning a national arbitration center to open in The Burkina Faso Chamber of Commerce (CCIA-BF) is planning to open a national arbitration center in 2007, and has organized several educational seminars on ADR. Regulatory Framework Both the Code du travail (article 189) and the Code de la famille make conciliation mandatory in the first instance. In a class action labor dispute, the Minister of Labor follows Articles and may submit the action to an arbitration procedure, which is conducted by court officials. In 1994, the post of Médiateur du Faso was created through law of 22/94/ADP of 17 May See Providers below. The OHADA Uniform Act on Arbitration has resolved any legal conflicts with arbitration that previously existed. Burkina Faso is party to ICSID (Washington Convention), the New York Convention, OHADA and the Code CIMA. Bilateral Investment Treaties (date signed): Switzerland (1969), Tunisia (1993), Germany (1996), Malaysia (1998), Belgium-Luxembourg (2001), Bénin (2001), Ghana (2001), Comoros (2001), Mauritania (2001), Chad (2001) 12

13 ICSID Neutrals Burkina Faso has eight neutrals on the ICSID Panel of Arbitrators and Conciliators: four arbitrators and four conciliators. (See Annex A) Current Practice An arbitration center is in the planning stages, to be operated through the CCIA-BF. ADR services have the political support of the government, and through additional training of practitioners, financing of centers, and promotion of ADR services, Burkina Faso will be wellplaced to provide a forum of arbitration to commercial operators. Chambre de Commerce, d Industrie et d Artisanat du Burkina Faso (CCIA-BF): o Arbitration Center in planning stages: The CCIA-BF is currently developing plans for the institution of an arbitration center. Though the project benefits from political support, it suffers from a lack of financing. Because of financial constraints, the center will likely not be established for another three to four years. o ADR cases taken ad hoc: The CCIA-BF has successfully conducted ad hoc cases in arbitration, mediation, and conciliation. In 2002, CCIA-BF processed four ad hoc cases that included the arbitration and mediation of disputes over contracts in delivery of goods, sale of goods, transportation of merchandise, warehouse management. Arbiters: Though there is not an official list of arbiters the CCIA-BF draws from, the arbiters are chosen from honorable, trustworthy people with expertise in business. Fees: Administrative costs and arbitrators honoraria of ad hoc arbitration proceedings are currently being absorbed by the Chamber of Commerce, until an official arbitration center can be established. Once a center is in place the fees and honoraria will be charged according to a schedule of fees. Problems: Without a formal ADR structure, cases are sometimes badly managed because of varying degrees of competency of legal officials. Contact: Chambre de Commerce, d'industrie et d'artisanat du Burkina Faso (CCIA-BF), 01 B.P. 502 Ouagadougou 01. Tel : /15. Fax: ccia-bf@cenatrin.bf Web site: Le Médiateur du Faso: This government agency is functionally similar to an ombudsman, mediating in cases between the State and individuals or corporations. Though the mediator is active, it can be a slow way to resolve disputes and may be inaccessible to some parties. o Contact: Le Médiateur de Faso Immeuble Place de la Nation 109, Rue BP 5577 Ouagadougou 01 Tel: (226) /37/38/92 Fax: (226) mediateur.faso@mediateur.gov.bf Web site: CCJA: Those seeking arbitration services do often use OHADA s regional Common Court of Justice and Arbitration in Abidjan, Côte d Ivoire, due to its convenience and proximity to Burkina Faso. See Regional Institutions. Private Law Firms: At this time CLDP is unaware of the existence of private law firms that provide arbitration, mediation, or conciliation services. 13

14 CAMEROON Overview Cameroon, a French- and English-speaking country with a population of 16 million, is the host of the successful Centre d Arbitrage de Groupement Inter-patronal du Cameroon (GICAM). GICAM been very active in holding informational ADR seminars for judges, arbiters, lawyers, and commercial operators. Because the organization represents 192 enterprises in Cameroon it has been successful in reaching the commercial sector. Additional seminars have also been held in Cameroon by the International Development Law Organization (IDLO), ICSID, and the Ministry of Justice. Cameroon, a French- and English-speaking country, is the host of the successful GICAM Arbitration Center. Cameroon s professional population is aware of ADR practices in the commercial sector, and its bilingual capacities provide greater ease for the operation of diverse commercial enterprises. Regulatory Framework Articles 3 and 4 of the code of civil and commercial procedure require conciliation as the first step to resolving disputes. The OHADA Uniform Act on Arbitration has resolved legal conflicts with arbitration that previously existed. Cameroon is party to ICSID, the New York Convention, OHADA and the Code CIMA. Bilateral Investment Treaties (BITs): The United States has a BIT with Sénégal, signed in 1986, which took effect in Germany (1962), Switzerland (1963), Netherlands (1965), Romania (1980), Belgium-Luxemburg (1980), United Kingdom (1982), China (1997), Mali (2001), Mauritania (2001), Guinea (2001). ICSID Neutrals Cameroon has eight neutrals (four arbitrators and four conciliators) on the ICSID Panel of Arbitrators and Conciliators. (see Annex A) Current Practice Commercial operators and the government both use arbitration and mediation; individuals are more likely to turn to mediation and conciliation to resolve labor and family disputes. Approximately 10 cases have been decided by the Arbitration Center at GICAM, involving disputes in construction contracts and other commercial contracts. This number will most likely rise shortly as a result of GICAM s current efforts to increase the use of arbitration clauses by parties to commercial contracts. To this end, Cameroon will expand the use and awareness of ADR geographically by holding informational seminars and courses across the country, using government offices and NGOs such as GICAM. Additionally, the Chamber of Commerce will develop another arbitration center, possibly providing services targeting the maritime and insurance industries. Centre d Arbitrage de Groupement Inter-patronal du Cameroon (GICAM): GICAM is a professional association that represents almost 80% of the commercial enterprises existing in Cameroon. Based in Douala, the GICAM arbitration center provides arbitration services to enterprises and individuals in Cameroon and across the Central African region. The number of cases decided is lower than expected because of the lack of contractual language in most commercial contracts that mandates the use of arbitration in case of dispute. However, the rate of cases at GICAM is increasing due to communication and educational seminars on the subject. The arbitration center plans to 14

15 undertake a large promotion campaign for its ADR services starting in September In this campaign, workshops and seminars will be held on arbitration procedure and contractual clauses, geared towards Cameroonian enterprises in an industry-specific manner. o Fees: There is a fee to open the claim, an administrative fee and an honorarium to arbitrators. Registration fee: 150,000 CFA per party. Administrative fees: Fees are based on a sliding scale from 4.5% to 0.5% of the amount in dispute, with a minimum of 200,000 CFA. Honoraria: Fees are based on a sliding scale from 10% to 0.5% of the amount in dispute, with minimum and maximum honoraria defined at each level of amount in dispute. The minimum fee is 200,000 CFA. o Language: Most materials are available in English and French; most arbitrators are fluent in both English and French. o Arbitrators: The panel of arbitrators is made up of lawyers, several judges, and university professors experienced in arbitral procedures. o Contact: Centre d'arbitrage de GICAM Immeuble GICAM Bonanjo BP 829, Douala Tel: (237) / Fax: (237) gicam-dla@camnet.cm Directeur juridique: Dr. Ousmanou Sadjo Tel: (237) sa2_ousmanou@hotmail.com Private law firms: Law firms practice arbitration, mediation, and conciliation on an ad hoc basis. Some have been successful in resolving disputes between the government and private sector enterprises. See Annex A. Chambre de Commerce, d Industrie, des Mines et de l Artisanat: The Chamber of Commerce has prepared for the eventual development of an Arbitration Center. It has not moved to develop one yet because of the existence of the GICAM Arbitration Center. However, another arbitration center in addition to GICAM may be useful to provide industry-specific ADR services to commercial operators. It is possible that specialized arbitration centers for insurance and maritime claims would be set up through the Chamber of Commerce to provide more targeted services. o Contact: Chambre de Commerce, d Industrie, des Mines et de l Artisanat Rue de Chambre de Commerce B.P. 4011, Douala Tel: (237) / Fax: (237) HELP OUT is an organization building up resources for arbitration, mediation, and negotiation. It seeks to build up the ADR culture in Cameroon to prepare for the upcoming Central Africa Sub-regional Market and the Douala Stock Exchange. To this end, Help Out has organized lectures and promotes ADR in the government. For example in January 2002, Help Out invited a lecturer from Hamline University s Dispute Resolution Institute to introduce the concepts of ADR in business and human rights in Cameroon. o Contact: HELP OUT P.O. Box 582 Buea, SW Province Cameroon Tel: (237) helpout_cam@yahoo.com 15

16 The Revue Camerounaise de l Arbitrage is a journal on arbitration published three times a year, directed towards lawyers and the world of business. Tel: (237) , Fax: (237) COTE D IVOIRE Overview This French-speaking country with a population of 16.8 million is well advanced in providing ADR services to commercial operators through the Court of Arbitration of Côte d Ivoire. The Court of Arbitration of Côte d Ivoire provides ADR services to commercial operators in the country. that previously existed. Regulatory Framework The Court of Arbitration of Côte d Ivoire was created through a legislative act: Resolution CCI/AG2/RES/No. 9/93 of the General Assembly of the Chamber of Commerce and Industry, 1993, adopted the principle of the creation of an Arbitration Court under the auspices of the Chamber of Commerce. The OHADA Uniform Act on Arbitration has resolved any legal conflicts with arbitration Côte d Ivoire is also party to ICSID and the New York Convention, the OHADA treaty, and the Code CIMA. Bilateral Investment Treaties (date signed): Switzerland (1962), Sweden (1965), Netherlands (1965), Germany (1966), Italy (1969), Tunisia (1995), United Kingdom (1995), Ghana (1997), Belgium/Luxembourg (1999). ICSID Neutrals Surprisingly, Côte d Ivoire has no neutrals on the ICSID Panel of Arbitrators and Conciliators. Current Practice Cour d Arbitrage de Côte d Ivoire (CACI): The mission of the CACI, operative as of April 2000, is to offer economic operators the means of conciliation and arbitration for the settlement of their disputes. o Services: CACI offers arbitration and conciliation/mediation. o Framework: CACI is composed of three branches: the Administrative Council, the Committee on Mediation and Arbitration, and a Secretary General. o Language: Materials and arbitration services are in French, though the Web site is also available in English. o Fees: Administrative fees and honoraria for arbitrators and mediator/conciliators are charged on a rising scale with maximum fees at each level. Administrative fees: For an arbitration proceeding, the fee starts at 2% of the amount in dispute, going to a maximum of 3 million CFA (about $5,500). For a conciliation/mediation, the fee starts at 50,000 CFA (about $90), going to a maximum of 1 million CFA (about $1800). Honoraria: For an arbitration proceeding, the fee starts at 150,000 CFA (about $270) going to a maximum of 3 million CFA (about $5,500) for one arbitrator. For a panel of three arbitrators the 16

17 minimum is 250,000 CFA (about $460), and maximum is 4 million CFA (about $7,400). For a conciliation/mediation, the fee starts at 75,000 CFA (about $135), going to a maximum of 2 million CFA (about $3,700). For a more complete schedule of fees, a copy of the CACI laws and fees can be downloaded from the CACI Web site: o Contact: Court of Arbitration of Côte d Ivoire 06 BP 2847 Abidjan 06 Tel: (225) Fax: (225) / info@caci.or.ci Web site: GHANA Overview Ghana is an English-speaking country with a population of 20.2 million. ADR mechanisms are increasingly being encouraged by the Ghanaian government and promoted in the private sector through initiatives such as Media Week which recently publicized the benefits of ADR in Ghana. Several venues exist in which mediation and conciliation techniques are used: the Commercial Ghana is host to the Ghana Arbitration Centre and the AMCHAM Commercial Conciliation Centre, as well as other centers for the resolution of commercial disputes. Conciliation Centre at AMCHAM is for commercial disputes. The Ghana Arbitration Centre was created in 1996 by retired judges and professionals as a venue for arbitration and a provider of ADR services. Regulatory Framework Ghana s arbitration laws are crafted based on UNCITRAL model arbitration law. The Arbitration Act of 1961 (Act 38) regulates the settlement of differences by arbitration and the enforcement of arbitration awards in Ghana. In this connection, Act 38 also makes provision for the enforcement of foreign awards in accordance with the New York Convention. Heretofore the law was underutilized because of ignorance as to its existence. o The Act is still in force, but is in the process of being repealed and replaced with a new ADR act, through the Alternative Dispute Resolution Bill. The new ADR bill includes a multi-door concept (see Nigeria) and court-mandated ADR. The Alternative Dispute Resolution Bill was due to be enacted in the third session of the third parliament, which began in Act 459 of 1993: This act enables judges to recommend conciliation in civil and criminal cases. The GIPC Act of 1994 (Act 478), Section 29: The GIPC Act states that when a dispute between an investor or licensee and the government has arisen and all efforts to reach an amicable settlement have failed, the aggrieved party has the option to submit the dispute to arbitration under the procedures of the United Nations Commission on International Trade Law (UNCITRAL), or within the framework of any bilateral or 17

18 multilateral investment protection agreement to which Ghana and the investor's country are parties, or in accordance with any other national or international dispute settlement procedure. See the Ghana Investment Promotion Centre for the full text: The Act also established the Ghana Investment Promotion Centre, a provider of mediation and arbitration services to investors in Ghana. See Current Practice. o In 2002 the Chief Justice of Ghana incorporated ADR into the court system, by introducing the Mediation Week in April It is called Court-Connected ADR. Ghana is party to the following international agreements which may impact an investor s decision to use alternative dispute resolution: International Agreements: ICSID (Washington Convention), New York Convention Bilateral Investment Treaties (date signed): Bulgaria (1989), China (1989), Côte d Ivoire (1997), Cuba (1999), Denmark (1992), Egypt (1998), France (1999), Italy (1998), Germany (1995), Malaysia (1996), Netherlands (1989), Romania (1989), South Africa (1998), Switzerland (1991), United Kingdom (1989), Mauritania (2001), Mauritius (2001), Burkina Faso (2001), Bénin (2001) ICSID Neutrals Ghana has eight neutrals on the ICSID Panel of Arbitrators and Conciliators: four arbitrators and four conciliators. (See Annex A) Current Practice In Ghana, the ADR effort has largely been based on the pioneering work of the local ADR project in the Faculty of Law at the University of Ghana, Legon. The university s programs, which have supported the AMCHAM Commercial Conciliation Center s organizational infrastructure, have so far concentrated on providing skills so that more ADR techniques can be infused into different levels of the administration of justice in order to enhance effective commercial conciliation. Most ADR cases in Ghana are in mediation and conciliation; though arbitration can occur in any venue selected by the parties, the Ghana Arbitration Centre is the only institutionalized forum for arbitration. The new ADR bill directed at repealing the Arbitration Act of 1961 has been slow to gain momentum, though it is perceived to be a potentially crucial improvement for the state of ADR in Ghana. Ghana s efforts to promote alternative dispute resolution may show results in the next few years by attracting more commercial operators to the GAC and Commercial Conciliation Centre, as well as by increasing the numbers of private law firms capable of offering arbitration and mediation services. Ghana is leading other countries in the promotion of ADR with initiatives such as Media Week, a program held in April 2003 that spread the word about uses of alternative methods of dispute resolution. An ADR Task Force was set up by the Chief Justice of Ghana to advise him on the ways to incorporate ADR in the justice delivery system. The Media Week was set aside by the ADR Task Force as a means to educate the public about alternative dispute resolution, and air time was provided by media companies for members of the ADR Task Force to appear and educate the public, on live television and radio programs. Public reaction to alternative dispute resolution was very positive due to people s bad experiences with litigation in the past. Ghana Arbitration Centre (GAC): The GAC was created in 1996 and is chaired by Dr. Samuel K.B. Asante. GAC is made up of retired judges and professionals who provide ADR services with special concentration on arbitration. The Centre s focus is on the commercial and industrial sector. In order to become an arbitrator or conciliator at the center, lawyers must have at least 15 years experience, a proven competence in an area relevant to arbitration or conciliation, and high moral character and impeccable integrity. 18

19 o Fees: Two fees apply in arbitration cases at GAC: administrative fees and arbitration fees. Administrative fees: The fee begins at 3% of the amount of the claim (minimum $200), with a maximum of $1800 plus 0.25% of any excess over $160,000. Arbitration fees: Fees are charged at rates appropriate to the particular circumstances of the case, including its complexity and any special qualifications of the Arbitrators. Though formally based on American Arbitration Association (AAA) rules, in actuality the arbitration fees are usually negotiated and are much lower than international fees. They are usually flat fees fixed at the beginning of the arbitration. o Languages: English o Contact: Ghana Arbitration Centre P.O. Box GP Accra, Ghana Tel/Fax: (233-21) drskba@ghana.com Commercial Conciliation Centre, American Chamber of Commerce (AMCHAM): As part of its activities to promote business efficiency in Ghana, the American Chamber of Commerce in Ghana has set up a Commercial Conciliation Centre with a Secretariat located at the Chamber's offices. The objective of this Centre primarily is to mediate and settle commercial disputes. Conciliators for this Centre have been chosen for their personal and professional expertise and have undergone the requisite formal training for this undertaking. o The Chamber's current membership strength is 120, which represents about 70% of all American Businesses in Ghana. o It is expected that over the next 6 months the Chamber will establish an African Growth and Opportunity Act (AGOA) Help Desk. o Fees: On a sliding scale. o Languages: English o Contact: The Commercial Conciliation Centre American Chamber of Commerce (AMCHAM) P O Box CT 2869 Cantonments Tel/Fax: (233-21) amchamgh@ghana.com Web site: Ghana Association of Chartered Mediators & Arbitrators (GHACMA): This Association is made up of professionals trained in mediation and arbitration. The Association gives accreditation to trained mediators to practice, and is also involved in training stakeholders in dispute resolution all over the country. GHACMA recently trained some judges, registrars and court administrators in ADR, especially in mediation, negotiation, and customary arbitration. This training session helped the Mediation Week pilot project take off in April There are now 19 courts that offer mediation services to litigants and the public. The Association can be contacted through its President, Felix Korley, and Secretary, Martin Nwosu at P.O. Box 2481, Accra-North. Private law firms: Approximately 10% of Ghanaian law firms offer ADR services. Lawyers currently active in existing arbitration centers often have their own private practices as well. See Annex A. ADR Services for the Community: See Annex A. 19

20 o West African Dispute Resolution Center (WADREC): WADREC is an NGO which trains community groups in ADR methods, promotes ADR in the community through publication of brochures and pamphlets, and is a service provider, offering mediation and arbitration to community members. Though some commercial cases are handled, the focus of the organization is on the grassroots community level, attempting to increase synergy between traditional and new institutional forms of dispute resolution. There is a nominal administrative fee that can be waived; the organization relies on donor funding and volunteer services from its ADR trainers. Trainers are professors, judges, and lawyers who have been trained themselves in ADR in Ghana and in the United States. o International Federation of Women Lawyers (FIDA Ghana): The FIDA Legal Aid Clinic offers arbitration services and representation in court for indigent persons, especially mediation services and a hybrid of ADR services. o Legal Resources Center: Offers ADR services and legal aid to indigent persons. o Commission for Human Rights and Administrative Justice: Offers mediation services. Ministry of Manpower Development and Employment: A tripartite committee meets and negotiates disputes related to wages and work conditions. Contact the Acting Chief Director, Mr. J.K. Bapuuroh: o Contact: Ministry of Manpower and Development PO Box M.84, Accra-Ghana Tel: ( ) , Fax ( ) Ghana Investment Promotion Centre (GIPC): The Centre is a useful resource for investors in Ghana. In case of an investment dispute, GIPC will refer investors to the Ghana Arbitration Centre for arbitration services. o Contact: Ghana Investment Promotion Centre P.O. Box M193, Accra Tel: (233) Fax: (233) info@gipc.org.gh Web site: MALI Overview Mali, a French-speaking nation of 11.3 million people, has some ADR resources to offer in cases of commercial disputes, namely the Mediator of Mali, private law firms, and mediation services for women. The future of ADR looks brighter with the government s The future of ADR in Mali looks bright with the government s judicial reform initiative (PRODEJ) and the possibility of the re-establishment of an Arbitration Center at the Chamber of Commerce. judicial reform initiative (PRODEJ) and the possibility of the reestablishment of an Arbitration Center at the Chamber of Commerce. Regulatory Framework Decree 2956 of 15 September 1999 authorizes arbitration in relations with foreign investors, and conciliation measures are 20