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JAW 2024: Highlights from the third day of Johannesburg Arbitration Week

12 April 2024
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Overview

  • Johannesburg Arbitration Week (JAW) was held in Johannesburg from 9 to 11 April 2024.
  • Our team on the ground has compiled the following highlights of the third day’s discussions, which touched on BRICS, the AfCFTA Investment Protocol, mediation, and constitutional challenges in arbitration proceedings.
  • In addition, the results of the AFSA Moot: Human vs Machine challenge were announced.
  • In the evening, our team hosted guests for sundowners at our Johannesburg office.

Bowmans was a proud co-host, in conjunction with the Arbitration Foundation of Southern Africa (AFSA SA), of the inaugural Johannesburg Arbitration Week (JAW), which was held in Johannesburg from 9 to 11 April 2024.

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 third day’s discussions.

The silk road and the BRICS road – global ramifications

The theme of the third day of Johannesburg Arbitration Week (JAW) was ‘The Silk Road and the BRICS Road – Global Ramifications’. Advocate Michael Kuper SC, the chairman of AFSA, opened the day with a brief overview of the history of international arbitration in South Africa as part of his discussion on a shared intercontinental dispute resolution mechanism.

Professor David Butler then highlighted selected features of the China Africa Joint Arbitration Centre (CAJAC) arbitration rules which were specifically developed to contrast with the traditional Western approach to arbitration (in particular, to address the Chinese perspective that Western arbitration is slow and expensive). The goal of CAJAC is to offer a fully administered arbitration service that is acceptable to both Africa and China, to resolve disputes between them.

There was also some consideration of the BRICS December 2023 Resolution, in which Jackwell Feris emphasised that the aim of BRICS is to create space outside of the traditional superpowers – especially in a context where approximately 85% of the global population is represented by the BRICS nations. However, for BRICS to emerge ahead of its competitors, it will need to prove its relevance by ensuring that there is sufficient substance to its policies and activities, and that it has a reputation for legitimacy.

Unpacking the AfCFTA Investment Protocol

As part of the discussions on ‘Unpacking the Investment Protocol of AfCFTA’:

  • Leyou Tameru offered an insightful overview of the African Continental Free Trade Area (AfCFTA), breaking down each of the Protocols on Trade in Goods, Dispute Settlement, Movement of Persons, and Investment. Delving deeper into the Investment Protocol, she highlighted that the increase in claims by investors challenging a state’s change in policy and other political decision-making could led to fears around entrenching investor protections. Nevertheless, there are also significant obligations placed on investors regarding sustainable development and human rights issues.
  • Co-head of International Arbitration at Bowmans, Clement Mkiva, went on to discuss Articles 45 and 46 of the Investment Protocol, which require states to appoint competent bodies to de-escalate and resolve investor disputes. While in reality, these disputes are simply passed along to the state departments for resolution, he was optimistic that the establishment of these competent bodies would allow for open paths of communication between investors and decision-makers leading to effective dispute resolution.
  • Senior partner of Bowmans Tanzania, Dr Wilbert Kapinga, was asked to consider whether there is a case to be made for exhausting local remedies before making use of dispute resolution procedures established by AfCFTA. He argued that the starting point of any business relationship is trust. Accordingly, parties should cast aside any perceived lack of confidence in state structures and instead trust in their commercial partners by submitting themselves to local judicial systems before pursuing any remedies contained in AfCFTA.
  • Erin Cronjé highlighted that the implementation of a system is always where the difficulties will lie. Nevertheless, AfCFTA envisions pan-African solutions for sustainable development. The focus on Africa is not intended to isolate, but conversely to globalise; for Africa to participate in the global economy on a better footing than ever before. Capacity building is the engine of the AfCFTA. There are a lot of provisions recognising the need for training and structural support, for example through secretariats, building infrastructure, harmonising trade regulation and training customs officials, and promoting industrialisation.

Mediation: real solutions that bind

As part of his presentation on ‘Mediation: Real Solutions that Bind’, John Bishop argued that mediation is uniquely suited to addressing complex disputes. While discipline is required to produce a brief high-level statement of a party’s position, doing so crystallises the true dispute between the parties. The nature of mediation as an informal procedure also means that a mediator can ask sufficient questions to get to the heart of complex disputes and to identify obstacles to settlement.

Constitutional challenges in arbitration proceedings

A highlight from the panel discussion titled ‘Constitutional Challenges in Arbitration Proceedings’, is the comment that, once legality is raised, an arbitrator cannot consider the merits of the matter. A legality argument triggers the jurisdiction of the High Court to determine the issue. It was noted that constitutional issues are public issues and, therefore, should not be heard by an arbitrator but by the courts.

Young AFSA Moot: human vs machine

On Day 1, the Young AFSA, AFT and SADC teams each presented oral argument to the five-member Arbitration Tribunal. On Day 2, delegates considered two awards and were called on to indentify which award was generated by AI, and which was written by the human Arbitration Tribunal.

The results were revealed on day 3: 70% of delegates correctly identified the award drafted by the human Arbitration Tribunal. Despite this, only 54% of delegates thought that the human award was the correct award to have been made in the circumstances. More interestingly (and certainly more controversially), over 80% of the delegates believed that considerations of cost and efficiency outweigh the need for a human touch, which brings into question how parties might seek to have their disputes resolved and awards prepared in future.

Sundowners

In the evening, the Bowmans team hosted guests for sundowners. This was an opportunity for those who gathered for JAW, including colleagues from the various Bowmans offices across Africa, to connect and engage on some of the issues raised at the conference.