The dominant theme for Day 2 of JAW was institutional strengthening, legal certainty, and pragmatic adaptation as African arbitration continues to integrate more deeply into the global system. As Africa’s arbitration ecosystem continues to deepen and globalise, a strong theme of consolidation rather than disruption emerges, reinforcing institutional trust, procedural integrity, and legal certainty.
Africa’s arbitration framework is maturing and converging with global best practice
In the first panel discussion of the day, partners from the Bowmans offices in Mauritius, South Africa, Tanzania and Zambia shared insights on developments in Africa’s legislative landscape and judicial treatment of arbitration awards. Keep an eye out for a detailed report on this session to follow.
In a session focussed on the Architecture of International Arbitration Practice, panellists discussed how international arbitration rests on a carefully constructed global architecture comprising international treaties, national legislation, institutional rules and the court’s treatment of arbitral awards. The panel explored how these layers interact to create predictability, enforceability and confidence in cross‑border dispute resolution.
In South Africa, the International Arbitration Act 15 of 2017 incorporates both the UNCITRAL Model Law and the New York Convention, consolidating international arbitration enforcement into a single, modern instrument. The International Arbitration Act represents a watershed moment for South Africa and has removed any lingering doubt that South Africa is a pro‑arbitration jurisdiction.
Courts and arbitrators jointly safeguard enforceability
National Courts are the gatekeepers of arbitration. Diamana Diawara, previously the ICC Africa director and currently a member of the AFSA Court, shared her experience that arbitrators globally are keenly aware of the treatment of their awards by courts. Arbitrators play a critical role in the enforceability of awards and should always have local and international stakeholders in mind when drafting awards. Awards must be practical, well-reasoned, procedurally sound with due regard for due process.
AI offers efficiency but raises long‑term professional risks
In a panel discussing the use of AI in arbitration proceedings, it was acknowledged that the use of AI introduces real efficiencies, especially in document-heavy matters, including document review, hearing preparation, transcription, and identifying inconsistencies in the record. However, there is a clear tension between cost-efficiency benefits of AI and the need to properly train the next generation of practitioners. Sound judgment and reasoning are developed through experience, exposure, and learning by doing; practitioners should not deprive themselves of these necessary skills by over-reliance on AI – especially at a junior level.
Integration of global and local realities
In a session on the impact of sanctions on international arbitration and enforcement, the group chief legal & regulatory affairs officer for MTN emphasised that, while sanctions form part of a policy framework, there is a direct operational impact – particularly in cases of ‘secondary sanctions’ and have the capacity to undermine the intended efficacy of arbitration proceedings. In South Africa, parties are not automatically indemnified from the consequences of complying with sanctions. Parties should carefully consider classic boilerplate clauses such as force majeure, illegality and incapability of performance so that they reflect the political reality and are fit for purpose. Practitioners should position themselves to provide contextually informed advice rooted in local imperatives.
In a session focused on critical minerals, energy security and strategic supply chains, sector specialists in mining, trade, and construction, discussed project delivery challenges and the dispute resolution tools that can be utilised to meet those challenges. If investors fail to do their due diligence to ensure that effective dispute resolution processes are in place in advance (bilateral treaties, ICSID arbitration, etc) then captive investments may be vulnerable. Tension exists between the regulatory reality and commercial interests resulting in a mismatch between policy and legislation on the one hand, and the ability to implement on the other.
Evolution of investment arbitration in Africa
Energy and infrastructure projects are highly regulated from an environmental, licensing and property perspective. Certainty is key to boosting investor confidence. This may be achieved through the adoption of harmonised arbitration rules relevant for and established in Africa. The SADC Charter signed in 2024 is a step in the right direction.
African countries have largely contributed to the international investment treaty jurisprudence as respondents under BITs and investor-state agreements. Increase in withdrawals from BITs and investor-state agreements initially sparked concerns, though there is optimism that the Protocol on Investment (passed by the African Union) and the introduction of foreign investment regulations and laws at State-level will shape international investor disputes going forward.
