Trends in dispute resolution in Africa

Legal systems in Africa Civil law Equatorial Guinea, Benin, Chad, Niger, Mozambique, Angola, Guinea Bissau, DRC Common law Kenya, Uganda, Tanzania Roman Dutch law South Africa, Zambia, Botswana, Zimbabwe Sharia/Islamic law Egypt and parts of Nigeria

Court systems in Africa Issues Corruption Delays Alternative ways of resolving disputes – arbitration and others

Alternative dispute resolution (ADR) Arbitration - domestic and international Only ADR process that is binding, unless parties reach settlement using another ADR process Mediation Non-binding, impartial third party to assist parties to articulate own interests Conciliation Similar to mediation: conciliator heads the negotiations, proposes settlement terms and directs parties towards an agreement

Why arbitrate? Neutrality, impartiality and independence Flexibility Can avoid disadvantages associated with African court sytems Flexibility Constitution of the arbitration tribunal, language, venue, and procedural rules Confidentiality Not public like many court proceedings Final and binding award Not subject to appeal Delays Generally quicker than court proceedings, particularly post-award Ease of enforcement of award New York Convention

Enforcement in Africa (1) New York Convention Award enforcement proceedings involve the consideration of local legislation (Arbitration Acts). A party seeking to enforce an award in a NY Convention country needs to make an application to the national court for recognition and enforcement. Grounds for refusal to enforce a foreign award (Article V): A party was under some incapacity or the agreement was invalid; A party was not given proper notice of appointment of arbitrator or of proceedings; Award deals with a difference or contains a decision on matters not contemplated/falling within terms of submission to arbitration, or contains decisions on matters beyond the scope of submission to arbitration; Composition of arbitral tribunal or procedure not in accordance with agreement of parties, or, if no agreement, not in accordance of law of country where arbitration took place; Award is not yet binding or has been set aside or suspended by a competent authority; Difference was not capable of settlement by arbitration; or Public policy considerations.

Enforcement in Africa (2) New York Convention African countries Over 30 countries are member states, including South Africa, Egypt, Nigeria, Algeria, Morocco, Mauritius, Tunisia, Kenya, Uganda, Tanzania Case study – Kenya Implemented NY Convention into its national law. Arbitration Act 1995 – section 36 (2) – award to be recognised as binding and enforced in accordance with the provisions of the NY Convention, or any other applicable conventions. Section 36 (3) – requirements for making an application for enforcement of award. Section 37 – grounds for refusal (similar to those in the NY Convention) : Party to arbitration agreement was under some incapacity; Arbitration agreement is invalid; or Party was not given proper notice of appointment of arbitrator or of proceedings;

Enforcement in Africa (3) Case study – Kenya (cont’d) Arbitral award deals with dispute or contains decision on matters not within contemplation of/falling within terms of arbitration; Composition of arbitral tribunal or procedure not in accordance with agreement of parties or with the law of the state where arbitration tool place; Arbitral award not yet become binding or has been set aside; Arbitral award was induced or affected by fraud, bribery, corruption or undue influence; If the subject matter of the dispute is not capable of settlement by arbitration under Kenyan Law; and Recognition or enforcement of award would be contrary to the public policy of Kenya.

Enforcement in Africa (4) Non - New York Convention African countries Including Angola, Chad, Ethiopia, Libya, Namibia. Consult national legislation of the country where you want to enforce the award and local lawyers. Other regional conventions – Riyadh Convention Member states include some African countries – e.g. Algeria, Djibouti, Sudan, Somalia, Libya.

Challenges to enforcement – three examples Public policy Domestic public policy varies between states State immunity Jurisdictional immunity, or immunity from suit – if the state, or state entity has agreed to submit a dispute to arbitration, this should not be a problem BUT immunity from recognition/enforcement and execution of an award can be a difficult issue - where the award debtor is a state or state entity, state immunity might block enforcement Establish what doctrine of state immunity is applied in the country of enforcement Example - Kenya Government Proceedings Act 3. Misconduct

Future of arbitration in Africa New African arbitration centres Growth of FDI and regional trade will result in increased demand for arbitration services, particularly in energy and natural resources Established institutions still popular – LCIA, ICC, ICSID

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