Africa has six established world-class centres for solving out-of-court cases. FILE PHOTO | NMG
Although international arbitrators from the UK, France and the
US are generally considered to be among the “best in the world”, their
counterparts in Africa can compete well against them and be included in
those ranks.
This is not an assessment based on
continental pride or other such subjective considerations, but founded
in the facts of Africa’s small but increasingly credible international
arbitration framework.
Africa already has six established centres for international arbitration, with a seventh being formed.
Burundi,
Egypt, Mauritius, Rwanda and Uganda each have one such centre, while
Kenya has two — the Nairobi Centre for International Arbitration and the
soon-to-be operational Law Society of Kenya International Arbitration
Centre.
All six existing centres are run according to
rules and requirements that are at least as stringent as their
counterparts elsewhere, and possibly stricter in some ways.
To
belong to the Kigali Centre for International Arbitration in Rwanda,
for example, an arbitrator must have the appropriate degrees and
licences, plus at least 10 years’ post-qualification or senior business
experience, arbitration experience in five or more cases, membership of
professional bodies and fellowship status with the Chartered Institute
of Arbitrators (or a comparable institute).
In
addition, most of Africa’s best international arbitrators belong to the
International Centre for Settlement of Investment Disputes (ICSID).
Here, over and above their technical and subject expertise,
members must be ethically sound, with high moral character, the ability
to exercise independent judgment and no conflicts of interest. At this
point, the continent has about 80 international arbitrators on the ICSID
panel.
Ghana has the most, 18, followed by Kenya with
nine, Rwanda and Nigeria with eight each, Zimbabwe with seven and
Uganda with six. Burundi, Egypt, Mauritius, and Tanzania each have four
ICSID international arbitrators, while Somalia has three and Malawi,
one.
Admittedly, this is not a large pool of
international arbitrators. However, Africa’s global arbitrators
distinguish themselves on two counts.
For one, quite a
few practise in renowned centres such as the ICSID and the
International Chamber of Commerce (ICC), side by side with their global
peers.
For
another, African international arbitrators are proving highly
effective. The awards issued through the established African arbitration
centres are being recognised and successfully enforced in African
courts.
Examples are the 18 international arbitrations
conducted by African arbitrators at the Kigali Centre for International
Arbitration. No award issued by this centre has been set aside and all
18 have been recognised in Rwanda. Similarly, the courts in Tanzania
have directed that the $65 million award in the Dowans-Tanesco
arbitration be enforced. This award is one of the biggest ICC
arbitrations in Africa to date.
These successes are
just the start and Africa’s small pool of international arbitrators is
bound to grow for two reasons. First, investment in the continent is
increasing and, with it, the demand for international arbitration.
Second, African governments are actively supporting the development of
world-class international arbitration on home soil.
According
to the International Monetary Fund, four of the six fastest-growing
economies in the world are in sub-Saharan Africa, where foreign direct
investment has leapt from $1 billion in 2002 to over $58 billion in
2017.
Intra-African trade has taken off too and many
East African countries are entering into bilateral investment treaties
(BITs). Kenya has signed 15 BITs with other countries, Tanzania 20,
Uganda 16 and Ethiopia 33.
As intra-African investments
have increased, so has the demand for effective and efficient ways to
protect investments and resolve disputes. For these disputes especially,
it is to be expected that the preference will be for African
international arbitrators with an intimate understanding of laws
regulating investments in their countries.
The cost of
home-based arbitration is also compelling: legal fees for ICSID claims
conducted offshore can reach as high as $40 million or $50 million in
just three to four sittings.
Governments add weight to African dispute resolution.
We
can certainly expect to see more pressure growing for disputes arising
in Africa to be resolved on the continent and not in a boardroom in
Europe. Indeed, the government of Kenya has already announced that all
international arbitrations to which it is a party, must be referred to
the Nairobi Centre for International Arbitration.
Governments,
especially in East Africa, are coming to the party by ratifying the
ICSID and the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (New York Convention). They have also
established enabling national legislation to recognise and enforce
awards by their courts.
Such legislation has already
been passed in Kenya, Burundi, Rwanda, Tanzania and Uganda, and the
international arbitration infrastructure that goes with it is in place.
This includes codes of ethics that govern international arbitrators in
Africa, ensuring that awards are not set aside due to misconduct and
bias, and that avenues are available for redress.
Increased
arbitration within Africa would inevitably encourage more Africans to
register and practise as international arbitrators. As they gain
experience, they too will join the ranks of the pool of African pioneers
who can already be considered world class.
And as
that pool grows, so too will the number — and reputation — of
international arbitration centres on African soil, ensuring that
disputes arising in Africa are resolved in Africa both as a matter of
practicality and preference.
Evans Monari is head of litigation and dispute resolution at Bowmans in Kenya
No comments :
Post a Comment