Role of African Courts in Arbitration Dr Emilia Onyema SOAS University of London 20 November 2013

Key Questions How effective are the courts in Africa in promoting international arbitration in the continent? Do we need to rethink the current level of courts and their role in supporting arbitration in the continent?

Outline Introduction to the continent. The role of courts in arbitration. How can courts in Africa encourage arbitration in the continent? Can the lawyers assist? Can arbitration institutions play any role? Some suggestions.

African Continent 55 independent States: 5 in North Africa (NA) 50 in Sub-Sahara Africa (SSA) 17 (of the 50) are Ohada member states Colonial rule, legal transplantation & pluralism. Received law & legal system (colonial connection) Customary law; Islamic law. Statutory law. Regional law; International law.

Model Law & NYC Arbitration law based on the UNCITRAL Model Law NYC member states in SSA Egypt Kenya Madagascar Mauritius (2006 ML) Nigeria Rwanda (2006 ML) Uganda Zambia Zimbabwe BeninBotswana B. FasoCameroon CARCote d’Ivoire DjiboutiGabon GhanaGuinea KenyaLiberia MadagMali MauritMozambique NigerNigeria SenegalSouth Africa TanzaniaUganda ZambiaZimbabwe

Others NYC for NA Countries ICSID Algeria Egypt Libya Morocco Tunisia All Except the following: Angola Cape Verde Djibouti Eritrea Libya Seychelles South Africa

Summary of Data 52 of the 55 States have laws regulating arbitration (Liberia, Mauritania and Sierra Leone do not have dedicated laws). 26 of the 55 States are parties to NYC (29 States are not signatories) 48 of the 55 States are parties to ICSID (notably Angola and South Africa are not members)

Interpretation of Data Laws regulating arbitration exist and are predominantly modern. Reasonable engagement with international conventions relevant to arbitration. Almost every State has at least one arbitration institution. Lots of arbitration practitioners on the continent. So why the key questions?

Problem Text of laws also need robust pro-arbitration interpretation. Lack of access to most arbitration related decisions of the courts. Some are very poor decision: eg Where the HC restricted arbitration in clear disregard of the law that requires stay of proceedings. Where CA found the subject matter was within the scope of the arbitration agreement but refused to grant a stay by adding requirements into the text and worse, relied on an 1880 English decision to interpret a law based on the ML!

Discussion Courts do play different roles in different stages of the arbitration. Connectors: seat of arbitration or place of enforcement. Courts need to support arbitration by interpretation both the text and the spirit of the text and complying with treaty obligations; recognise and uphold the powers conferred on the arbitrator; uphold the arbitration agreement and award. Why are courts not effective?

Suggestions: 1 More arbitrations in African cities. Continued modernisation of the laws. Specialist arbitration courts at first instance; or CA to have original jurisdiction. Appeal to SC Clear policy to support arbitration. Publish ALL arbitration related decisions

Suggestions: 2 Arbitration Institutions can: Continue to organise training for knowledge sharing. Take on the function of publishing such decisions on their websites Create blogs and discussion platforms to discuss such decisions. Provide access/links to arbitration related decisions from other jurisdictions.

Conclusion Judges do play a role in making particular jurisdictions attractive as seats of arbitration. We need both modern laws and robust interpretations of these texts to make African jurisdictions attractive to international arbitration. Judges must buy into a clear pro-arbitration policy. Arbitration institutions and practitioners in the continent & the international arbitration community can support these drives.