Bowmans is a proud co-host, in conjunction with the Arbitration Foundation of Southern Africa (AFSA SA), of the inaugural 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 has compiled the following highlights of the first day’s discussions.
The African Continental Free Trade Area
There are currently 1.3 billion people in Africa. By the end of the century it is estimated that Africa will comprise about 40% of the world population. With this in mind, the African Continental Free Trade Area (AfCFTA) has a unique opportunity to further its goals by significantly boosting intra-Africa trade, and trade across all sectors of the economy.
As part of the discussion on the Dispute Settlement Mechanism which was established by AfCFTA for the determination of disputes arising between State Parties, Vlad Movshovich pointed to the importance of the Protocol on Investment. The protocol requires dispute prevention and grievance management among States and investors, including consultations, negotiations and other attempts at amicable dispute resolution.
If these additional steps fail, and the parties are unable to resolve their dispute, then they may seek to resolve it through a dispute resolution mechanism, which will be contained in the Investor-State Dispute Settlement (ISDS) annex, once drafted. The ISDS is therefore one of the key outstanding issues which the Protocol on Investment is still to address.
Africanisation of Arbitration
According to Francis Oleghe, Member of Faculty, Nigerian Institute of Chartered Arbitrators (loosely quoted), ‘To Africanise means to make African or, in a broader sense, to succeed in making African through interests and perspectives that influence a system. Africanisation of international dispute resolution therefore implies that international dispute resolution should take Africa’s priorities and aspirations into consideration. We must remember that an international dispute resolution system can only be international if founded on cooperation and compromise.’
In the discussion on the ‘Africanisation of Arbitration’, moderated by our own Jonathan Barnes, Jawaid Babamia commented that, while it was the case historically that South African disputes, governed by South African law, were being adjudicated overseas with South African lawyers playing a fairly limited role, he has witnessed significant changes in recent years. As there has been a steady increase in the number of international arbitrations involving parties from sub-Saharan Africa. So, our arbitration institutions have had the opportunity to establish a reputation for excellent services with first-class arbitrators and this has naturally spurred on the Africanisation of arbitration.
Advocate Jawaid Babamia highlighted that alternative dispute resolution mechanisms do not exist in isolation. In order to make African arbitration attractive, the context on the African continent must be attractive. This is achieved where governments, judiciaries, legal practitioners and arbitration centres work together with a common goal.
Governments must uphold the rule of law and implement arbitration friendly policies; judiciaries must continue to pronounce on rules in a manner that is clear and certain; practitioners must move away from formalistic and rigorous application of rules of court in conducting arbitration proceedings; and arbitration centres must maintain state of the art facilities and excellent matter management.
The essence of Africanization is inclusiveness. There has been huge growth in recent years in the number of African arbitration practitioners, arbitrators and arbitral institutions. In Kenya, for instance, the Government has made efforts to promote the Nairobi Centre for International Arbitration (NCIA) by mandating that the NCIA is the arbitral body in all government contracts.
On the other hand, in Nigeria, a number of arbitrations arising from Nigerian projects are still instituted outside Nigeria, notwithstanding access to competent local arbitration practitioners. Africanization can only be achieved by deliberate policies which are centred on making African jurisdictions arbitration friendly.
Key stakeholders for Africanisation, including governments, practitioners, judiciaries, and arbitration centres, must play an active role in fostering Africanization. To enhance Africanization, there must be a focus on the same values as those held in high esteem in international arbitration, namely excellence and integrity.
It is important that practitioners, particularly industry leaders like Bowmans, develop an in-depth knowledge and understanding of the arbitration legislation applicable in the various jurisdictions in which we operate. Together with developing our own skills, true growth in the industry requires us to create opportunities for the development of counsel and arbitrators to ensure that disputes that are referred to arbitration are dealt with by practitioners and arbitrators with requisite skills.
Cross-border arbitration requires us to find synergies in the different legal systems and cultures within which our clients operate, to ensure that we meet their expectations. It is important that clients are confident that arbitrations, and the rules in terms of which they are conducted, accord with their own expectations of integrity, high standards of protection afforded to confidential information and adherence with the rule of law.
To enhance the credibility of African arbitrations, we need to showcase our competence in complex disputes and, with equal rigour, tell the story of our achievements. This will showcase best practices in African arbitrations, and the positive results that may be achieved cost effectively.
Given the difficulties experienced in enforcing arbitration awards, it may be time for parties to consider the furnishing of an enforcement bond and/ or guarantee. The concept of bonds and guarantees is well known in the construction industry and are a common feature of the standard form agreements (i.e., FIDIC).
Young AFSA Moot: Human vs Machine
The Young AFSA, AFT and SADAC teams each presented oral argument to the five-member Arbitration Tribunal. On Day 3, two awards will be presented; one drafted by the Arbitral Tribunal and one generated by artificial intelligence. Delegates will then be asked to compare the awards to determine which is which.
