Developments in African Arbitration

Arbitration in Africa has reached a tipping point. While Africa-related disputes have kept lawyers busy for a number of years in traditional arbitration centres, the market is steadily changing. The number of arbitral centres across the African continent is growing rapidly, and African lawyers are developing specialist arbitration skills to service this growth. As the market becomes more mature, notably in jurisdictions such as Kenya, Nigeria and Ghana, but also increasingly in francophone Africa, governments, arbitration lawyers and arbitrators are progressively calling for these disputes to be heard in Africa rather than ‘exported’ to international centres.

In May 2016, the International Council for Commercial Arbitration (ICCA) Congress, comprising both lawyers and government officials, is being held in Mauritius. This conference, run by one of the leading thought leadership organisations in the field, will for the first time be dedicated to arbitration in Africa.1 The ICCA conference aims to provide a long-overdue platform to explore some of the challenges and showcase the opportunities for arbitration across Africa. Although some commentators might argue that Mauritius is not strictly speaking Africa, the island nation hosts a number of arbitral institutions and is an entry point for foreign investment into Africa, notably from India. Mauritius also played a key role in the development of the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (2014).

The growth of arbitration in Africa is by no means restricted to an off-shore jurisdiction. Relatively mature arbitral centres already exist in a number of African cities including Kigali, Nairobi and Accra. To the north, in 2014 Morocco launched an annual arbitration conference – Casablanca Arbitration Days. In conjunction with a number of international arbitral institutions and organisations, this initiative seeks to establish Casablanca as a hub for international arbitration. Governments are getting wise to the fact that arbitration can be a source of economic activity, with conference centres, hotels and local lawyers all set to benefit. For any country, a recognised arbitral centre is also a great show of ‘soft power’, helping to underline broader messages about political and legal stability, and give comfort to foreign investors. In order to offer true competition to the established arbitral centres around the world, however, these centres in Africa will need to demonstrate that they can offer a reliable and efficient alternative for the users of arbitration – including by giving comfort that the local judiciary will actively support, or at least not interfere with, the arbitral process.

The growth of arbitration across Africa is further supported by a wide array of legal reforms gaining momentum across the continent. For example, OHADA’s desire to modernise the Uniform Arbitration Act,2 and recent ratifications of the New York Convention all contribute to a more stable and reliable environment in which arbitration can flourish.3 Most African states have understood that this stability is key to facilitating and encouraging both domestic and foreign investment. When it comes to arbitration of investment disputes, however, not all states are aligned on the benefits of this method of dispute resolution. More on this below.

Against the backdrop of this largely positive outlook for arbitration in Africa, we explore in this article some of the challenges that the continent still faces and consider whether the steps that a number of key jurisdictions are taking will be sufficient to tip the balance in favour of arbitration.

Recent trends

Arbitration of business disputes in Africa continues to see year on year growth. This upward trajectory in disputes is, in large part, the corollary of vigorous economic growth in many African jurisdictions. According to a recent World Bank report, ‘Sub-Saharan Africa’s growth is projected at an average 3.7 per cent in 2015’, partly in thanks to ‘continuing infrastructure investment’.4 Despite the global economic situation and marked reductions in commodities prices, particularly in the natural resources sector, which to date has contributed significantly to much of Africa’s growth, the International Monetary Fund (IMF) continues to forecast sub-Saharan Africa’s growth at an average of 4 per cent in 2016.5

In the next section, we reflect on how this economic growth has driven increased commercial and investment treaty arbitration across the continent and seek to identify certain trends which could shape the landscape over the next few years.

Commercial arbitration

According to statistics from two of the leading global arbitral institutions, the ICC and the LCIA, the number of arbitration cases involving African parties, and in particular parties from sub-Saharan Africa, is on the rise. In its 2014 Statistical Report, the ICC noted that a record 113 parties from sub-Saharan Africa were involved in ICC arbitrations in 2014.6 In its 2013 Statistics, the LCIA registered almost twice as many arbitrations involving African parties as it did in 2012.7 Despite this strong growth in case load, however, it is notable that few of the arbitrators nominated to hear these disputes were African themselves.8 The need for arbitral tribunals to be more diverse and to reflect the community of users is nowhere more stark geographically than in Africa.

To date, practitioners’ experience suggests that the majority of commercial arbitration disputes in Africa have arisen in the telecoms, energy and natural resources sectors. The energy and natural resources sectors are, as The Economist illustrated in May 2015, two of the driving motors of the African economy, as resource-rich countries remain attractive targets for foreign investment.9 However, investment paradigms are changing, with The Economist observing that ‘[i]nflows of capital are increasingly focused on less resource-rich countries, as investors target the continent’s booming middle class. The amount of investment into technology, retail and business services increased by 17 percentage points between 2007 and 2013.’

Investment in Africa continues to attract investors not only in new sectors, but also from different jurisdictions. China became the key player for investment into Africa, challenging the investment model offered by investors from jurisdictions with long-standing ties to the continent (notably, the UK, France and Belgium). However, although Chinese investment into Africa increased exponentially over a very short period of time, it also gave rise to a number of salutary ‘lessons learned’ as projects turned sour and African governments started to re-evaluate their preferred business partners. Investors from other jurisdictions, India and South Korea, for example, each have their own approach to making investments, not least due to cultural differences. African host countries now have a much greater choice of partners with whom to do business. Although various recent reports indicate that China’s investment will slow down this year, the country has developed a strong foothold in Africa,10 providing the impetus for the creation of an arbitration partnership between China and South Africa (see below).

Investment treaty arbitration

Like commercial arbitration, investment treaty arbitration cases involving African state respondents have also seen a significant increase in recent years. According to the most recent statistics published by the ICSID Secretariat, African states are parties to 16 per cent of the arbitrations it currently administers.11 Most of these disputes relate to the energy and natural resources sectors.12

The increasing number of investment disputes involving African states can be attributed to a number of factors. There is an inevitable corollary between increased investment activity anywhere and increased investment-related disputes. The past decade has also seen an increase in the number of bilateral investment treaties signed by African states, as well as an increasing number of investment codes that incorporate similar protections. In parallel, investors worldwide are increasingly both aware of both the availability of investment arbitration and willing to bring such claims. Finally, a further factor which has contributed to this growth is a renewed effort on the part of a number of African countries to crackdown on corruption. In a number of instances, these efforts have resulted in the cancellation of contracts and projects, with investors seeking remedies pursuant to bilateral investment treaties.13

Investment arbitration is thus increasingly in the spotlight in Africa. Concerns raised by civil society groups about transparency of investor-state arbitration proceedings coupled with concerns that poor and heavily indebted states are at a significant disadvantage in disputes against well-funded investors have led to questions about the balance of power in these disputes. These concerns are part of a global reassessment of investment arbitration that has given rise to changes in approach in Africa, as some states seek to modify the investment protection mechanisms available. For example, in November 2015, South Africa concluded its process for the termination of its bilateral investment treaties (BITs) with the approval of a new domestic law (not yet in force) that gives preference to mediation and state courts over international arbitration.14 The law limits the South African government’s consent to international arbitration to circumstances where domestic remedies have been exhausted. Even more radically, consent to arbitrate applies only to state-to-state arbitration, not investor-state arbitration.15This approach, which has been subject to criticism from both opposition parties and the international sphere, has been adopted to redress what South Africa’s Trade Minister termed ‘inconsistent and unpredictable outcomes’.16

Development of new institutions and growth of existing institutions

Alongside the growth in the number and importance of both commercial and investment arbitrations involving African parties, the proliferation of arbitral centres across Africa is testament to the increasing importance of arbitration as a means of dispute resolution on the continent. In the next section, we evaluate some of challenges and opportunities that these institutions face.

The Maghreb

Northern Africa has had a strong arbitration scene for a number of years, notably in Morocco and Egypt.

The recent inflow of foreign law firms to Casablanca demonstrates the keen interest in the Moroccan market.17 Morocco benefits from its strategic gateway position between Africa and both Europe and North America, making it a favourable entry point for investment into Africa. Together, these factors create a persuasive narrative for the viability of Morocco to become a hub for African disputes.

The Casablanca International Mediation and Arbitration Centre (CIMAC),18 for example, has set out its bold ambition to become the reference point for international dispute resolution, not only in the region but also for the entire African continent. In 2014, CIMAC organised an inaugural arbitration conference, Casablanca Arbitration Days, which attracted a number of high profile guest speakers from the global arbitration community. The event was supported by the ICC International Court of Arbitration (ICC), the International Centre for Dispute Resolution (ICDR) and the London Court of International Arbitration (LCIA).19

Casablanca’s ambition to entrench itself as an arbitration hub is further illustrated by CIMAC’s wish to elect a foreign chair, in order to strengthen the centre’s independence, credibility, and its regional and international influence.20 CIMAC is also looking to establish an experienced panel of arbitrators and experts who would be familiar with its rules and in a position to offer the international business community a viable alternative to arbitrating in Paris or London, which typically would be significantly more expensive.

For Casablanca to succeed as an arbitration centre, however, it will need to address several key issues. First, it would need to allow court submissions in arbitration-related matters to be submitted in French. Currently, all court submissions must be in Arabic, limiting international companies’ and many states’ willingness to use a Moroccan seat for non-Arabic language arbitrations. Second, Morocco will need to ensure that arbitration-related disputes will be directed to a specialised chamber of the courts such that local judges develop the requisite expertise through training and experience. Third, Morocco will need to amend its current arbitration law in order to make its provisions more consistent with those usually found in arbitration-friendly jurisdictions, for example, in respect of the grounds available for challenging an award.

To the east, the Egyptian capital is home to the oldest African arbitration institution, the Cairo Regional Centre for International Commercial Arbitration (CRCICA). Created in 1979 by the Asian-African Legal Consultative Organisation,21CRCICA was ranked as one of the leading arbitration centres across the African continent by the African Development Bank in a survey published in April 2014.22

By 31 December 2015, CRCICA had registered over 1,000 cases.23 In 2015, its caseload included disputes arising in a variety of sectors, ranging from media and entertainment to construction and M&A disputes. Its highest value claim to date is quantified at just under US$4 billion24 and relates to a purely international dispute, between US and UAE parties.25 The statistics indicate that CRCICA is able to attract and service high value international arbitrations: in 2015, 13 non-Egyptian parties were participating in arbitration cases under the auspices of CRCICA and 10 arbitrators appointed in CRCICA-administered cases were also foreign nationals.26 Like Morocco, however, Egypt would also benefit from modifying certain aspects of its arbitral procedure, notably in respect of the scope of the grounds on which an annulment action can be brought, and ensuring a positive judicial approach to awards.

East Africa

East Africa has a promising story to tell when it comes to the growth of arbitration in Africa. Noteworthy progress in developing arbitration has taken place in Rwanda, Ethiopia, Tanzania and Uganda. For example, in Rwanda, Kigali has been making efforts to win a slice of the arbitration market, notably with the Kigali International Centre of Arbitration (KIAC).27 Administrating cases under its own Rules and under the UNCITRAL Rules, it provides both a domestic and an international panel of arbitrators. KIAC actively seeks to attract internationally renowned arbitrators.28 However, despite these efforts, the centre has only registered 28 cases since its creation, the majority of which involved the government of Rwanda as a party.29

Kenya, however, is the shining star of the East Africa market. Since its amendment of the Arbitration Act in 2009,30 and the drafting of the 2010 Constitution (which promotes arbitration and other ADR mechanisms),31 Kenya has shown a strong appetite to be at the forefront of the development of arbitration in Africa. Kenya is on a steady path to build up a strong arbitration practice to match its position as the region’s commercial and investment hub. A number of significant reforms have been achieved through the concerted efforts of both government and the private sector.

Drawing upon international best practice and the experience of some of the leading arbitration institutions across the world, Kenya established the Nairobi Centre for International Arbitration (NCIA) in 2013. The NCIA is governed by a board of directors comprising seasoned practitioners in the dispute resolution sector and leaders drawn from various institutions whose roles are central to international business and dispute resolution. The NCIA was established to support the renewed impetus for the use of arbitration and ADR, which was brought into the mainstream following the promulgation of Kenya’s new constitution in August 2010. Beyond its broad mandate to administer domestic and international arbitration in Kenya, the NCIA also seeks to promote arbitration by organising international conferences, seminars and training programmes for arbitrators and scholars,32providing advice and assistance for the enforcement and translation of arbitral awards,33 and by entering into strategic agreements with other regional and international bodies.34 In December 2015, the NCIA published its own set of arbitration and mediation rules.35These detailed rules include modern mechanisms such as provisions for the appointment of an emergency arbitrator.36

Dispute resolution practitioners in the country are generally confident that the proactive steps so far taken will transform Kenya’s international and investment arbitration landscape in thenear future. Speaking at the NCIA Stakeholder Review Forum, Kamau Karori of Iseme, Kamau & Maema Advocates, one of the country’s leading arbitration practitioners, observed that the rapid growth of arbitration has seen many foreign investors and multinational organisations increasingly getting involved in Kenya’s arbitration space. The rapid increase in commercial activities and cross-border business within the East African region and beyond suggests that Kenya’s arbitration practice will continue on its upward trajectory in the years ahead.

South Africa

The development of arbitration in South Africa has been held back by its outdated arbitration laws, which have been unreformed since 1965. Although practitioners are keen to see the proposals for a new law adopted, the issue has become something of a political ‘hot potato’, in the context of the broader domestic debate concerning the use of arbitration as opposed to the national courts.37

Despite these challenges, South Africa’s leading arbitral institution, the 20-year old Arbitration Foundation of Southern Africa (AFSA), has achieved a degree of success and has demonstrated a keen desire to develop further. Following an ambitious legal exchange program with China,38 in August 2015, AFSA launched a new international arbitration centre dedicated to the resolution of commercial disputes between Chinese and African parties –the China Africa Joint Arbitration Centre (CAJAC).39 This new centre, established in Johannesburg, is the result of an agreement between AFSA, AADR, the Association of Arbitrators of Southern Africa, and the Shanghai International Trade Arbitration Centre. 

West Africa

Given the significant international investment in West Arica, notably in the oil and gas sector, the region has been relatively slow to adopt the dispute resolution machinery typically sought by foreign investors.

Nigeria is the only country in the region to have a modern arbitration law, the Arbitration and Conciliation Act (ACA), based on the UNCITRAL Model Law.40 Further, Nigerian courts have also developed a strong line of arbitration-friendly jurisprudence. Nigeria is home to various arbitral institutions, including the Lagos Regional Centre for International Commercial Arbitration (LCRICA),41 the Maritime Arbitrators Association of Nigeria, and the Lagos Court of Arbitration (LCA). Established in 1989, the LCA amended its Rules in 2013 to introduce its own form of emergency arbitrator procedure.

A few hundred kilometres to the west, interest in arbitration has been growing in Ghana, especially in the business community, as the traditional court system can be considered to be slow, often ineffective and expensive. A recent corruption scandal has done little to assuage these views. In September 2015 a journalist released an undercover report into corruption of the judiciary resulting in a series of resignations, dismissals and the investigation of over 30 judges.42 Arbitration is well-placed to be the beneficiary of the public’s desire to see efficient and impartial decision-making in the country.

There are two main arbitration bodies in Ghana: the Ghana Arbitration Centre (GAC) and the Ghana Association of Chartered Mediators and Arbitrators (GHACMA). Both deal mainly with domestic arbitrations. The passing of the Alternative Dispute Resolution Act 2010 provides for both arbitration and mediation, and the courts themselves are empowered to encourage the use of ADR. Attitudes in the country are changing, and the business community is increasingly seeking the inclusion of arbitration and ADR clauses in contracts.

Francophone Africa – does OHADA provide a model?

OHADA (Organisation pour l’harmonisation en Afrique du Droit des Affaires) was set up in 1993 to harmonise commercial law in the African Franc zone. Seventeen African countries have signed the OHADA Treaty,43 which sits at the heart of a project to increase the attractiveness of the region to potential investors. Increasing confidence in international arbitration as a means of resolution of commercial disputes across signatory states is among the core purposes of OHADA. OHADA has established a dual track for arbitration: institutional arbitration administered by the Cour Commune de Justice et d’Arbitrage (CCJA)44 and ad hoc arbitration where the CCJA acts as the Supreme Court.45

The CCJA provides an administered arbitration mechanism. It has made considerable efforts towards modernisation and greater transparency, including the publication of a raft of documents relating to arbitration. This move towards transparency is welcome, as it shows the OHADA Supreme Court’s wish to ensure that OHADA arbitration remains accessible and understandable to parties. It also comes as an encouragement for the development of OHADA arbitration, as parties – and their counsel – will turn to the published decisions as precedents and will gain a greater sense of legal certainty. The CCJA’s pursuit of transparency was demonstrated in the recent setting-aside decision in GETMA v Republic of Guinea.46 Although much criticised, the CCJA’s decision has a number of positive aspects. First, the CCJA has emphasised the need to maintain transparency throughout the arbitration process. Second, it has shown that it will uphold its decisions on fees it sets for arbitrators. Given that the costs of many European-based arbitration institutions are deemed prohibitive in the region, the CCJA’s decision will give parties comfort that the costs set by the CCJA will not be exceeded as a result of separate negotiations by the arbitrators.

The Uniform Act of Arbitration (UAA) provides a basic foundation for all arbitrations seated in the 17 OHADA countries and guarantees that all OHADA-governed arbitral awards – including ad hoc arbitration awards – will be enforceable in all member states. This is particularly useful as some OHADA state members are not party to the New York Convention.47

Indeed, article 25 of the UAA grants a final arbitral award the same status as a judgment of a national court in all OHADA member states.48However, the UAA does not define the applicable procedure to obtain exequatur. To enforce an arbitral award made in an OHADA member state, a competent judge in a member state must first grant an exequatur of the award. This process has the effect of converting the award into a judgment of the domestic court for enforcement purposes. As a result, three different sets of rules may apply when seeking to enforce an arbitral award in an OHADA country: the UAA, domestic legislation, and any international conventions that could apply. This situation gives rise to legal uncertainty. It is likely to be one of the key areas for the anticipated modernisation of the UAA.

In effect, as a central part of OHADA’s structure, OHADA member states have adopted a series of Uniform Acts pertaining to various aspects of business law, including securities regulation, bankruptcy procedures and company law – as well as arbitration. These Uniform Acts are directly applicable in every member state.49 Over the past few years, a number of these Uniform Acts have undergone review to enhance harmonisation between the texts and to iron out perceived inconsistencies or difficulties with the initial drafting.50

This same process of clarification is currently being considered for the UAA, unchanged since its promulgation in 1999. Identified shortcomings in the UAA relate both to lacunae in the original text (eg, giving rise, amongst other things, to difficulties regarding enforcement of awards) and to ensuring that the arbitration rules are updated to incorporate improvements adopted by other institutions (eg, the availability of an emergency arbitrator). To assist with this modernisation, OHADA has initiated a tender process for the revision of the UAA.51 As part of this process, it is envisaged that the UAA will be made available in English, French, Spanish and Portuguese and therefore has the potential to have a broader international reach and offer a single uniform system for arbitration across Africa.

Attitudes to enforcement

Contrary to the widely held perception that arbitral awards are difficult to enforce in Africa, the situation is in fact more nuanced. A number of African countries have enforcement regimes that are not dissimilar to those available in a number of mature arbitration jurisdictions. Indeed, in many countries around the world, parties may face unexpected obstacles to enforcement – and Africa is no different in this regard. Where difficulties exist, these are often linked not only to particularities of the legal regime but also to judicial perception of arbitration. In each jurisdiction, national legislation contains varying grounds for annulment or the denial of exequatur. Some countries do not include the widely-accepted breach of public policy ground to refuse to grant exequatur or to set aside an award.52 Moreover, the judiciary in each country has its own approach to the integrity of arbitration proceedings and the enforcement of arbitral awards. For example, although South Africa is a signatory (without reservation) to the New York Convention, its domestic law has the additional requirement that the exequatur of certain foreign arbitral awards must be authorised by the Minister of Economic Development.53 In practice, however, South African courts have the reputation of interpreting this law narrowly to permit enforcement.54

Given the number of jurisdictions in Africa and their different legal origins, there is benefit is seeking to establish a regional approach. This process of harmonisation has been led notably by OHADA, which, as noted, has implemented an ambitious mechanism to establish a common framework and reciprocity for the enforcement of arbitral awards across all signatory states.

In addition to this regional approach, many African states have taken or are taking steps to align themselves with the international approach provided for by the ratification of the New York Convention. While many African states have signed the New York Convention without making any reservations,55 others have exercised their right to apply reservations.56The latest African state to ratify the New York Convention, the Democratic Republic of Congo, issued a record number of four reservations when ratifying the treaty.57 These include limiting applicability to awards issued in the territory of another contracting state, non-retroactivity of the treaty, applicability only to disputes arising out of legal relationships considered commercial under national law, and inapplicability of the Convention in cases concerning immovable property.

Opportunities and challenges

Arbitration is now firmly entrenched as a viable alternative to the courts in many jurisdictions across Africa. The developments seen in recent years have helped establish more reliable and consistent practices and procedures. There is, however, more work to be done. There are still relatively few international arbitration cases heard on African soil (in 2014, only eight ICC arbitration cases were heard in African countries),58 and the number of African arbitrators appointed on international cases remains woefully small.

In order to cement the progress made to date, three key evolutions are needed. The first is the modernisation of domestic arbitration laws, which is one of the factors influencing the choice of an arbitral seat.59 The second is that local judges and lawyers must acquire deeper knowledge of arbitration. The third is to ensure that states, and government lawyers in particular, are fully aware of the upsides – as well as the downsides – of arbitration as an effective means of dispute resolution.

This capacity building is being carried out across Africa and led, in large part, by non-profit organisations such as Africa International Legal Awareness (AILA) and the African Legal Support Facility (ALSF). Capacity building is also being implemented through international cooperation agreements, such as the one concluded between the Permanent Court of Arbitration (PCA) and the African Union. These cooperation agreements aim to assist with the development of arbitral infrastructure and engagement of the regional arbitration community by participating in educational outreach and training programmes throughout the continent.60

The creation and the modernisation of various arbitration institutions on African soil are obviously two very important steps to enable arbitrations to be heard on the continent. Communication remains a challenge, however, and a quick fix would be to ensure that institutions maintain user-friendly websites where the latest arbitral rules and details of arbitrator panels can be found. According to a recent survey, the most commonly cited challenge by parties when conducting arbitration in Africa is the availability and experience of arbitrators.61 According to Judge Abdulqawi Ahmed Yusuf, the Somali vice-president of the ICJ Court, ‘African states have failed to appoint an African arbitrator or conciliator in 69 out of 85 existing ICSID disputes involving the continent’.62 Training, in part, is the answer, but also the appetite for greater diversity in the pool of arbitrators is not solely an African problem – it is an issue with which the wider arbitration community continues to grapple.

Although to date international corporates may have been reluctant to have their disputes heard in Africa, arbitration in Africa now finds itself at a tipping point. With increased attention on the continent’s arbitral centres, improved legislative frameworks underpinning international commercial and investment arbitration, and better resourcing and training, Africa can secure for itself a place on the global arbitration map.

Notes

  1. http://www.iccamauritius2016.com.
  2. http://www.ohada.com/actualite/2640/selection-de-consultants-pour-le-recrutement-d-un-cabinet-pour-la-realisation-de-l-etude-portant-revision-de-l-acte-uniforme-relatif-au-droit-de-l-arbitrage-en-lien-avec-la-mediation-commerciale-et-le-reglement-d-arbitrage-de-la-ccja-ohada.html.
  3. For example, the ratifications by Burundi on 21 September 2014 and by the Democratic Republic of the Congo on 3 February 2015.
  4. General overview of the World Bank from 22 October 2015, available at http://www.worldbank.org/en/region/afr/overview. The IMF updated this projection on 19 January 2016 and estimated sub-Saharan Africa’s growth at 3.5 per cent in 2015 (available at https://www.imf.org/external/pubs/ft/weo/2016/update/01/pdf/0116.pdf) ‘Investment in Africa’, The Economist, 30 May 2015.
  5. Following lower commodity prices, the IMF revised its initial projections of a 4.3 per cent growth rate from October 2015 and publishing an update on the World Economic Outlook on 19 January 2016 – available at https://www.imf.org/external/pubs/ft/weo/2016/update/01/pdf/0116.pdf.
  6. 2014 ICC Disputes Resolution Statistics, ICC Dispute Resolution Bulletin, 2015, No. 1. By way of comparison, in 2004, only 53 parties were from Sub-Saharan Africa, of which 13 were state or parastatal parties.
  7. Registrar’s Report, Casework 2013, available at http://www.lcia.org/LCIA/reports.aspx.
  8. In 2014, only 17 arbitrators from Africa (including North African countries) were appointed to ICC arbitral tribunals – less than 1 per cent of the total arbitrators named that year. Figures are similar in investment arbitration – only 40 out of the 981 arbitrators nominated by states to the ICSID panel (ie, 4 per cent) have an African nationality. Amongst them, the great majority has never been appointed to sit on an arbitral tribunal. Further, the 2015 Chambers and Partners ‘Most in Demand Arbitrators - Global Wide’ does not mention a single African-national arbitrator.
  9.  ‘Investment in Africa’, The Economist, 30 May 2015, available at http://www.economist.com/news/economic-and-financial-indicators/21652274-investment-africa.
  10. ‘Chinese FDI to Africa rose to $3.5 billion in 2013, and nearly all African countries are benefiting from China’s participation today’ (M. Diop, Y. Li, L. Yong, H.E. A. Ahmed Shide, ‘Africa Still Poised to Become the Next Great Investment Destination’, The World Bank, 30 June 2015, available at http://www.worldbank.org/en/news/opinion/2015/06/30/africa-still-poised-to-become-the-next-great-investment-destination).
  11. ‘The ICSID Caseload - Statistics (Issue 2016-1)’, available on https://icsid.worldbank.org/apps/icsidweb/resources/pages/icsid-caseload-statistics.aspx.
  12. Eg, Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v Republic of Kenya (ICSID Case No. ARB/15/29); Total E&P Uganda BV v Republic of Uganda (ICSID Case No. ARB/15/11); BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v Republic of Guinea (ICSID Case No. ARB/15/46); Standard Chartered Bank (Limited) Hong Kong v United Republic of Tanzania (ICSID Case No. ARB/15/41).
  13. See for example the following cases where corruption are alleged in the investment proceedings, Menzies Middle East and Africa SA and Aviation Handling Services International Ltd v Republic of Senegal (ICSID Case No. ARB/15/21) and BSG Resources Limited v Republic of Guinea (ICSID Case No. ARB/14/22). See also ‘Crying foul in Guinea’, The Economist, December 2014, available at http://www.economist.com/news/business/21635522-africas-largest-iron-ore-mining-project-has-been-bedevilled-dust-ups-and-delays-crying-foul. The authors of this article are counsel in this case, the issue is thus simply mentioned here and will not be addressed in further detail in this article.
  14. Protection of Investment Act 22 of 2015, Republic of South Africa, available at http://www.gov.za/sites/www.gov.za/files/39514_Act22of2015ProtectionOfInvestmentAct.pdf.
  15. Article 13 (5): ‘The government may consent to international arbitration in respect of investments covered by this Act, subject to the exhaustion of domestic remedies. The consideration of a request for international arbitration will be subject to the administrative processes set out in section 6. Such arbitration will be conducted between the Republic and the home state of the applicable investor.’
  16. Minister Rob Davies : Debate on the Protection of Investment Bill, 2015, in Parliament by Minister of Trade and Industry, available at http://www.gov.za/speeches/minister-rob-davies-debate-protection-investment-bill-2015-17-nov-2015-0000.
  17. Jean-Yves Gilg, ‘Morocco: The new gateway to Africa’, African Law and Business, 7 May 2015.
  18. http://cimacmaroc.org/Page_Centrale.aspx?Id_Page=1095.
  19. See the 2015 Casablanca Arbitration Days program available at http://www.casablancaarbitrationdays.com/.
  20. Laurent Gouiffès and Thomas Kendra, ‘Launch of the Casablanca International Mediation and Arbitration Centre in Morocco’, available on http://www.lexology.com/library/detail.aspx?g=a00e1d1f-632d-4e39-a626-71a76baa064f.
  21. This organization also founded the Kuala Lumpur, Lagos, Tehran, and Nairobi Regional Centres.
  22. Assessment Report of Arbitration Centres in Côte d’Ivoire, Egypt and Mauritius, prepared by Dr Werner Jahnel, at the request of the AFDB to assess various arbitration centres across the African continent. Full report at http://www.afdb.org/fileadmin/uploads/afdb/Documents/Procurement/Project-related-Procurement/Assessment_Report_of_arbitration_centres_in_C%C3%B4te_d%E2%80%99Ivoire__Egypt_and_Mauritius.pdf.
  23. new cases were filed in 2014, and 54 in 2015 - see ‘CRCICA Caseload in 2015: New Record Aggregate Sums in Dispute and Construction Disputes Regain Top Position’, CRCICA Newsletter 4/2015, available at http://crcica.org.eg/newsletters/nl042015/nl042015a001t.html.
  24.  ‘CRCICA’s recent Caseload: A new Record sum in dispute’, CRCICA Newsletter 2/2015, available at http://crcica.org.eg/newsletters/nl022015/nl022015a001t.html.
  25. ‘CRCICA Caseload in the Third Quarter of 2015: Two New Types of Disputed Contracts and One Purely International Case’, CRCICA Newsletter 3/2015, available at http://crcica.org.eg/newsletters/nl032015/nl032015a001t.html.
  26. ‘CRCICA Caseload in 2015: New Record Aggregate Sums in Dispute and Construction Disputes Regain Top Position’, CRCICA Newsletter 4/2015, available at http://crcica.org.eg/newsletters/nl042015/nl042015a001t.html. In comparison, in 2014, 40 non-Egyptian parties and 17 non-Egyptian arbitrators were participating in CRCICA-administered cases (See ‘CRCICA Recent Caseload: More Cases in 2014 than in 2013 and New Record for Purely International Cases’, CRCICA Newsletter 4/2014, available at http://crcica.org.eg/newsletters/nl042014/nl042014a001t.html).
  27. http://www.kiac.org.rw/.
  28. Call for Application to the KIAC Panel of International Arbitrators, available at http://www.kiac.org.rw/IMG/pdf/-17.pdf.
  29. KIAC Online Newsletter, issue 3, January 2016, available at http://kiac.org.rw/IMG/pdf/-15.pdf.
  30. E. Torgbor, ‘Chapter 3.5: Kenya’, in L. Bosman (ed), Arbitration in Africa: A Practitioner’s Guide, Kluwer Law International, 2013, pp. 219–222.
  31. See articles 159 (c) and 189 (4) of the Constitution of Kenya, available at https://www.kenyaembassy.com/pdfs/the%20constitution%20of%20kenya.pdf.
  32. Nairobi Centre for International Arbitration Act No. 26 of 2013, S. 5(e).
  33. Ibid, S.5(k).
  34. Ibid, S 5(o).
  35. The NCIA’s Arbitration Rules (2015) were published by the Kenya Gazette Supplement No. 210 and were dated 24 December 2015. The NCIA’s Mediation Rules were published in the Kenya Gazette Supplement No. 205, and were dated 18 December 2015.
  36. Article 28 of the Arbitration Rules.
  37. See the IBA’s report on arbitration in South Africa at http://www.ibanet.org/Article/Detail.aspx?ArticleUid=a646cf32-0ad8-4666-876b-c3d045028e64.
  38. ‘First China-Africa Legal Exchange Program for young legal professionals’, AFSA @Work, February 2015, available at http://www.arbitration.co.za/module_data/a94a5d17-f642-4a68-b5d8-65df131dc197/downloads/march2015.pdf.
  39.  T. R. Snider, ‘China Africa Joint Arbitration Centre established in Johannesburg’, available at http://www.lexology.com/library/detail.aspx?g=4c1631fe-5a5b-4be9-847f-b1418340067f.
  40. Ghana’s Alternative Dispute Resolution Act 2010 incorporates only certain provisions of the Model Law.
  41. http://www.rcicalagos.org/index.html.
  42. Ruth Greene, ‘Ghana gets tough on judicial corruption’, International Bar Association, available at http://www.ibanet.org/Article/Detail.aspx?ArticleUid=2c8eb0c5-3ba2-4619-a7ac-b5c2d117633d.
  43. Benin, Burkina Faso, Cameroon, Central African Republic, Chad, the Comoros, Congo, Côte d’Ivoire, the Democratic Republic of Congo, Equatorial Guinea, Gabon, Guinea Bissau, Guinea, Mali, Niger, Senegal and Togo.
  44. OHADA Treaty, Articles 21-26.
  45. Uniform Act of Arbitration, Article 25 para. 3.
  46. See https://globalarbitrationreview.com/news/article/34474/tribunal-criticises-court-treatment-guinea-award/; http://kluwerarbitrationblog.com/2016/02/10/a-step-back-for-ohada-arbitrations/.
  47. ‘Waiting on the sidelines’, Commercial Dispute Resolution, November-December 2015, pp. 12-13.
  48. Article 25 of the UAA reads: ‘The award is not subject to any opposition, appeal or judgment setting it aside. It may be subject to a petition for nullity, which must be lodged with the competent judge in the member State. The decision of the competent judge in the member State can only be set aside by the Common Court of Justice and Arbitration. The award may be subject to opposition before the arbitral Tribunal by any third party, be he a natural person or corporate body, who had not been called and when the award is damaging to his rights. It may also be the object of an application for revision before the arbitral Tribunal by reason of the discovery of a fact capable of having a decisive influence and which, before the making of the award, was unknown to both the arbitral Tribunal and the party applying for revision.’
  49. OHADA Treaty, Article 10.
  50. Eg, the Uniform Acts on General Commercial Law, on Guarantees, and on Commercial Companies and Economic Interest Groups (GIE).
  51. http://ohada.org/appels-doffres-sp/fr/sp/actualite/3828,avis-manifestation-interet-pour-la-revison-de-lacte-uniforme-sur-larbitrage.html.
  52. For examples, the laws of Nigeria and Tanzania do not include this ground into their domestic legislation.
  53. Patrick M. M. Lane and R. Lee Harding, ‘National Report for South Africa (2015), in Jan Paulsson and Lise Bosman (eds.), ICCA International Handbook on Commercial Arbitration, Kluwer Law International, 1984 - Chapter VI, (1) (c). This condition applies to awards regarding matters ‘connected with the mining, production, importation, exportation, refinement, possession, use or sale of or ownership of any matter or material, of whatever nature, whether within, onto or from South Africa’.
  54. Steven Finizio and Thomas Führich, ‘Africa’s advance’, African Law and Business, 7 July 2014.
  55. According to the UNCITRAL database on International Commercial Arbitration & Conciliation, the African states that have signed the New York Convention without issuing any reservations are: Benin, Burkina Faso, Egypt, Guinea, Ivory Coast, Lesotho, Niger, Rwanda, Senegal, South Africa, Zambia, and Zimbabwe.
  56. According to the UNCITRAL database, the African states which have issued reservations are: Algeria, Botswana, Burundi, Central African Republic, Djibouti, Kenya, Mauritius, Morocco, Nigeria, Tunisia, Uganda, and Tanzania. Generally, the reservations that are made relate to the application of the New York Convention only to awards issued in the territory of another contracting State.
  57.  This information is not found in the UNCITRAL database. However, the Congolese bill No. 13/023 of 26 June 2013 details that the state’s adhesion to the New York Convention is limited and mentions four reservations, which is, according to the database as of 15 February 2016, the record number of reservations.
  58. 2014 ICC Disputes Resolution Statistics, ICC Dispute Resolution Bulletin, 2015, No. 1.
  59. Queen Mary School of International Arbitration, Survey ‘Choices in International Arbitration’, 2010, available at http://www.arbitration.qmul.ac.uk/docs/123290.pdf.
  60. See http://www.au.int/en/newsevents/13170/african-union-and-permanent-court-arbitration-sign-cooperation-agreement. See also A. Ross, ‘PCA teams up with African Union’, Global Arbitration Review, 6 August 2015. In this article, the author mentions that ‘a further host country agreement is now planned with Ethiopia’.
  61. http://www.simmons-simmons.com/~/media/Files/Corporate/External%20publications%20pdfs/Africa%20Insight.pdf ; p. 112.
  62. Lacey Yong and Alison Ross, ‘Africa must have more representation on tribunals, says Somali judge’, GAR, vol. 10, iss. 6, 15 October 2015.

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