Bowmans is a proud co-host, in conjunction with the Arbitration Foundation of Southern Africa, of the second Johannesburg Arbitration Week (JAW), which is currently being held at the Sandton Convention Centre.
JAW aims to explore the issues and challenges in the rapidly evolving field of international commercial arbitration, with a special focus on the key initiatives shaping and revolutionising dispute resolution in Africa.
Our team on the ground compiled the following highlights of the first day’s discussions.
Arbitration on the African continent and cross-border trade
Africa is not a passive participant but an active architect in shaping the future of dispute resolution. In a dialogue between former heads of state across the continent (including Mozambique, Nigeria, Kenya and Liberia) a recuring theme was the role that leadership can play in conflict resolution. They shared insights on the growing tension between youth and political leadership and the increasing demand by women for meaningful participation in decision-making structures. They urged renewed cohesion across the continent, cautioning that division is the greatest vulnerability for exploitation.
With cross-border trade growing exponentially, disputes invariably arise. The courts give arbitration force, and the future of arbitration depends on its recognition and enforcement by the courts. In a session focused on arbitration practice, pitfalls and perspectives through the eyes of the Bench, the outlook is bright: courts across the globe are taking an increasingly pro-arbitration position.
Arbitration is the first and last day of the play – not the dress rehearsal – and the New York Convention may be relied on by both the ‘sinners’ and ‘saints’ for purposes of enforcement. Courts are wary of opposition in the garb of appeals or review. A recent decision in England emphasised that the court does not have discretion to recognise and enforce; even public policy considerations are limited to enforcement and are not concerned with the underlying subject matter of the dispute.
Views from the judiciary
Retired Judge Roland Sutherland implored practitioners to embrace radical reform:
- First, by refusing to disaggregate mediation, arbitration and the court process and to instead view them as part of the same ecology of dispute resolution.
- Second, by tapping into existing talent by appointing experienced practitioners as permanent judges on a part-time basis.
Judge Davis provided useful insight into the practical impact of the mandatory Mediation Directive which was implemented in the Gauteng Division earlier this year; at present, the lead time for a trial date is approximately six months (down from five years).
International collaboration and investor-state considerations
Founded in 1996 in conjunction with leading law firms, accounting firms and business organisations, AFSA celebrated 30 years of administering commercial, domestic and international disputes through arbitration and mediation across Africa.
In a session focused on BRICS, AfCFTA and the fading rules-based order, profound changes in the global trade and the dispute resolution landscape were identified, including the personal sanctioning of ICC judges (affecting risk exposure for arbitrators); China’s decision to grant 53 African states 100% tariff-free market access; and sanctions causing Russian parties to turn to ‘friendly’ jurisdictions like South Africa, India and Kazakhstan for enforcement. Practitioners discussed how BRICS countries are positioning themselves as seats of choice for cross-border international arbitration and the need for strategic advice including the appointment of region-specific arbitration institutions who better understand geopolitical circumstances.
Efforts to establish alternative arbitration regimes within BRICS will require time, as divergent national priorities continue to challenge the implementation of a unified set of rules and arbitral framework. The intention is a lower-cost alternative to institutions such as the ICC in the southern hemisphere – the current outlook is optimistic.
Recent investor-State disputes in the mining sector are increasingly focused on performance and regulatory compliance rather than expropriation. While the long life of these investments makes it unrealistic to hold States strictly to legal and regulatory frameworks agreed decades ago, particularly as environmental, governance, and anti-corruption standards evolve, regulatory change should not be used to undermine agreed investment protections. Preserving investor confidence requires a careful balance between legitimate regulatory evolution and legal certainty; failing to strike it risks destabilising long term contractual relationships across sectors.
Arbitration hubs and the seat of the arbitration
In a session exploring structural reform, judicial confidence and the rise of African arbitration hubs, it was noted that, while Africa generates some of the world’s most complex disputes, these disputes are consistently determined in foreign seats. While acknowledging the significant progress being made through reformed legislation and institutional expansion (including the growing footprint of the ICC on the continent), entrenched contracting practices and unequal bargaining power continue to favour established seats like Switzerland and Singapore. Panellists emphasised that this affects both the substantive outcomes (proximity is key for institutional and regulatory knowledge and, importantly, context) as well as deprives practitioners of further development and jurisprudence.
Building credible African arbitral hubs requires more than legislative reform: it demands organised systems anchored in judicial support, institutional integrity and practitioner confidence. Ultimately, success should not be measured by market dominance: it should be measured by a shift in the market’s perception of Africa not as an ‘emerging’ arbitration destination but as an obvious one for continent-related disputes.
