Role of African Courts in ArbitrationDr Emilia Onyema

SOAS University of London20 November 2013

Key QuestionsHow effective are the courts in Africa in

promoting international arbitration in the continent?

Do we need to rethink the current level of courts and their role in supporting arbitration in the continent?

OutlineIntroduction to the continent.The role of courts in arbitration.How can courts in Africa encourage

arbitration in the continent?Can the lawyers assist?Can arbitration institutions play any role?Some suggestions.

African Continent55 independent States:

5 in North Africa (NA)50 in Sub-Sahara Africa (SSA)17 (of the 50) are Ohada member states

Colonial rule, legal transplantation & pluralism.Received law & legal system (colonial connection)Customary law; Islamic law.Statutory law.Regional law; International law.

Model Law & NYCArbitration law based on the UNCITRAL Model Law

NYC member states in SSA

EgyptKenyaMadagascarMauritius (2006 ML)NigeriaRwanda (2006 ML)UgandaZambiaZimbabwe

Benin BotswanaB. Faso CameroonCAR Cote d’IvoireDjibouti GabonGhana GuineaKenya LiberiaMadagMaliMauritMozambiqueNiger NigeriaSenegal South AfricaTanzania UgandaZambia Zimbabwe

OthersNYC for NA Countries ICSIDAlgeriaEgyptLibyaMoroccoTunisia

All Except the following:AngolaCape VerdeDjiboutiEritreaLibyaSeychellesSouth Africa

Summary of Data52 of the 55 States have laws regulating

arbitration (Liberia, Mauritania and Sierra Leone do not have dedicated laws).

26 of the 55 States are parties to NYC (29 States are not signatories)

48 of the 55 States are parties to ICSID (notably Angola and South Africa are not members)

Interpretation of DataLaws regulating arbitration exist and are

predominantly modern.Reasonable engagement with international

conventions relevant to arbitration.Almost every State has at least one

arbitration institution.Lots of arbitration practitioners on the

continent.So why the key questions?

ProblemText of laws also need robust pro-arbitration

interpretation.Lack of access to most arbitration related decisions

of the courts.Some are very poor decision: eg

Where the HC restricted arbitration in clear disregard of the law that requires stay of proceedings.

Where CA found the subject matter was within the scope of the arbitration agreement but refused to grant a stay by adding requirements into the text and worse, relied on an 1880 English decision to interpret a law based on the ML!

DiscussionCourts do play different roles in different

stages of the arbitration.Connectors: seat of arbitration or place of

enforcement.Courts need to support arbitration by

interpretation both the text and the spirit of the text and complying with treaty obligations; recognise and uphold the powers conferred on the arbitrator; uphold the arbitration agreement and award.

Why are courts not effective?

Suggestions: 1More arbitrations in African cities.Continued modernisation of the laws.Specialist arbitration courts at first instance;

or CA to have original jurisdiction.Appeal to SCClear policy to support arbitration.Publish ALL arbitration related decisions

Suggestions: 2Arbitration Institutions can:

Continue to organise training for knowledge sharing.

Take on the function of publishing such decisions on their websites

Create blogs and discussion platforms to discuss such decisions.

Provide access/links to arbitration related decisions from other jurisdictions.

ConclusionJudges do play a role in making particular

jurisdictions attractive as seats of arbitration.We need both modern laws and robust

interpretations of these texts to make African jurisdictions attractive to international arbitration.

Judges must buy into a clear pro-arbitration policy.

Arbitration institutions and practitioners in the continent & the international arbitration community can support these drives.

eo3@soas.ac.uk