The future of African arbitration is clearly in good hands. That was the indelible impression left by the third day of proceedings at the International Council of Commercial Arbitrators’ (ICAA) Congress in Mauritius.
An African and international line-up of expert practitioners, expertly chaired by Funke Adekoya SAN, all of whom had experience of disputes in Africa, addressed delegates at ICCA’s final full session of the three-day conference.
In many ways, it was the culmination of much that had gone before. ICCA’s resolution in promoting the event across Africa, both Francophone and Anglophone, had generated a high degree of interest; a sensible commercial strategy had also enabled that interest to be affordable.
With the overarching theme of the previous two days focused on international arbitration and its conformity with the rule of law, an issue to which International Court of Justice judge Abdulqawi Yusuf, among others, had addressed himself, Wednesday was an opportunity to move away from those subjects aimed at ICCA’s overall audience and to add a specifically African theme.
That was not to say African speakers were not engaged in the more technical sessions, on challenging tribunal membership, or how local courts and tribunals interact, because they very much were; John Ohaga, of Kenya’s TripleOKLaw Advocates, moderated the former session;Gaston Kenfack Douajni, from Cameroon’s Ministry of Justice, moderated the second, to give two examples.
This session, however, demonstrated the skills of ICCA’s African contributors in the round, and did so to an appreciative audience.
BRINGING IT ALL TOGETHER
The scene was set for many of the themes that had been discussed on an international basis to come together, expertly chaired by Funke Adekoya SAN of ǼLEX, Nigeria. Under discussion was the extent of any blossoming of international arbitration in Africa, given the growth in regional arbitration centres and the development of new national arbitration laws.
This session focused on practitioner experiences arbitrating disputes in African seats and arbitral centres, including the particular benefits and challenges of international arbitration in Africa. Adekoya’s expert summary of each speaker’s contribution displayed her ability as an arbitration lawyer, managing a large number of speakers and topics, ranging from Kenya’s John Miles, of J Miles & Co, to Vlad Movshovich from South Africa’s Webber Wentzel.
Movshovich discussed the issue of whether African states provide a safe seat for arbitrations. Movshovich was at pains to emphasise what was clear to many in the room, that African states recognise the rule of law and feel bound by international law.
It followed from this that he suggested African states were largely very supportive of international arbitration, which he justified by reference to the various conditions that exist for the setting aside of arbitral awards, as well as the need for recognition and enforcement of arbitral awards by African states. Thanks to that support, he noted, African states were indeed safe seats for arbitrations.
That did not mean that there was not room for improvement: one speaker, Bethlehem Asmamaw, from Ethiopia, told the panel “we shouldn’t kid ourselves”, she said, highlighting that while both judges and governments supported African arbitration, there was “still work to be done, and that work is still progressing”.
LEGAL REGIMES DISCUSSED
Adekoya turned the discussion to an overview of legal regimes in Africa, asking panellists how supportive or not the judges were of arbitral regimes in Africa. What, she asked, is necessary to gain greater recognition?
Professor Mohammed Wahab from Egypt picked up the question; the founding partner ofZulficar Law Firm, where he heads the international arbitration department, as well as an academic at Cairo University, was nuanced but firm in his response.
Wahab said that the support of the judiciary could only ever be as good as the sitting judges and “Africa is no exception” to that rule, he argued; trust and confidence, independence and neutrality were all required to maintain faith in the way judges looked at international arbitration.
Integrity was important, as was expertise and innovation, he stressed; all could be promoted by the market players active in this sector, he said, but it was important that judge had expertise in handling arbitration-related cases, and training was provided if necessary. More needed to be done in this field; as it did in the fields of innovation and flexibility in shaping international arbitration, given that, he said, “this continent is not devoid of brilliant minds”.
Arbitral institutions would also play a part, he argued, saying they could help showcase Africa and its countries as a place to resolve disputes.
Judges also needed to provide support and cooperation for arbitration, he said; they had to balance their role in respecting the awards that were presented to them for review, and to ensure their assessment of the case did not go to the merits of the award, but to respect the award granted and look instead to only the issues placed before them for decision.
Judges, he said, were under a duty to “assist, understand, and appreciate” arbitration, recognising, he said, that it was “not a competition”.
Adekoya agreed that judges needed to balance the requirement of enforcing arbitration awards and ensuring that the awards were indeed good ones, stressing that sides, judges and arbitrators, needed to take a balanced view.
THE ROLE OF OHADA EXPLAINED
She called upon Benoit Le Bars, the name and managing partner of the international arbitration boutique Lazareff Le Bars, to discuss the issues further. Le Bars, an acknowledged expert on OHADA practice, outlined that system of justice to the delegates.
OHADA, the Organisation for the Harmonization of Business Law in Africa, relies on a uniform system of commercial law spanning 17 Francophone countries in Africa, with a governing court based in Abidjan, Ivory Coast, the Common Court of Justice and Arbitration, (CCJ) based on a multinational treaty.
OHADA, said Le Bars, gave businesses a “tremendous element of safety” as well as generating predicable results for the users of arbitration; the CCJ, he said, was helping to harmonise case law on a regional level, particularly in relation to challenges to arbitration awards. That in turn, was helping to formulate a different approach by local courts, and the CCJ’s support for international arbitration was supportive, and understood its role in the process; it was there to play the part as a regulator of the process, nothing more.
Le Bars argued that the CCJ could act positively, in helping to affect the quality of arbitrations, ensuring that arbitrations follow a proper path, and that if arbitration was supported by institutions as well, then he saw, from the steps taken in the past 17 years, that “the arbitration context is changing in Africa”, albeit that cases before the CCJ more often than not involved states, rather than just purely commercial parties.
Le Bars argued that alongside the CCJ, there needed to be a greater recognition by arbitral institutions that the fees charged by arbitration centres needed to come down; otherwise, he warned, there would be tensions between states and institutions over costs. Overall, however, he was positive, as long as African arbitral institutions followed best practice.
ENFORCEMENT ISSUES ASSESSED
Adekoya then switched focus, calling upon the distinguished Ghanaian managing partner and head of the litigation department at Bentsi-Enchill, Ace Anan Ankomah, to discuss enforcement and whether this process was indeed arbitration-friendly.
Ankomah considered the impact of the UNCITRAL Model Law and the New York Convention, and noted caselaw where the courts had facilitated their recognition, saying that the courts jealously guarded their role in supervising the arbitral process.
Arbitration, he said, was not self-enforcing; it was a process that could be entered into agreements, but that agreement was “not worth a sou” if assets were not available for enforcement.
He stressed the need for appropriate and adequate translations of awards being recognised by local courts, saying that in one instance, a copy of an award had been inappropriately translated, leading to difficulties.
Ankomah told his audience: “If I don’t understand the award, then I would urge the court not to understand the award as well.” He also highlighted issues such as public policy challenges to awards, and the distinctions made between common law and civil law countries in enforcing awards, as well as the relevant civil procedure codes in effect on enforcement, saying that the practical side of enforcement was important.
Courts, he noted, would accept challenges to orders enforcing awards, but were acutely conscious that the burden of showing the award should be overturned was on the party resisting enforcement, saying, “Africa gets it,” and citing his own country as an example.
Adekoya then delved deeper into the question of to what extent did enforcement and public policy issues relate to each other. Public policy exceptions to enforcement, she noted, were a broad concept, with conflicting principles, but could also bring finality to a proceeding; how did they contribute to the need for enforcement?
That subject, and others, will be covered in part II of the report on African arbitration from this session.
The report on the second part of day three of the ICCA Congress can be read here.