Arbitration in Africa: Expanding the Scope

3-4 June 2021, online

1. Opening remarks

Otunba Adeniyi Adebayo, CON (Nigeria’s Minister for Industry, Trade and Investment), Babatunde Savage, FCA, (Chairman, ICC Nigeria & Regional Coordinator for Africa, Lagos), John Denton, (Secretary General, International Chamber of Commerce, Paris) Alexis Mourre, (President, ICC International Court of Arbitration, Paris), Dorothy Ufot, SAN, (Ag. Chairman, ICCN Arbitration & ADR Commission, Lagos), Funmi Roberts, C.Arb, (Chairman, Conference Planning Committee), and Sola Ephraim-Oluwanuga C.Arb (Session Coordinator); all welcomed the delegates. They expressed their regrets that the pandemic made it impossible to converge in Lagos. But they were all delighted with the keen interest in the Conference that saw over 3000 registered delegates from about 100 countries.

John Denton in his welcome address spoke about the ICC’s commitment to increase its footprint in Africa along with a detailed plan of action. Otunba Adeniyi Adebayo in delivering his keynote address signaled the unequivocal support of the Nigerian Government to foster arbitration especially in light of the African Continental Free Trade Area (AfCFTA) Agreement.1

The audience was informed of the unfortunate demise of Prof Gabriel Olawoyin SAN (Chairman, ICC Nigeria Commission) and the imminent departure of Alexis Mourre the outgoing President of the ICC Court and a great friend of Africa. The incoming President Claudia Salomon was welcomed.

2. From walls to bridges: A practical approach to expanding the scope of arbitration in Africa

Members of the panel: Godwin Omoaka, SAN (moderator) (Partner, Templars, Nigeria), Folashade Alli, C.Arb (session coordinator) (Principal Partner, Folashade Alli & Associates, Nigeria), Kamal Shah (Partner, Head of the Africa & India Groups, Stephenson Harwood LLP, India), Mouhammed Kebe (Managing Partner, Geni & Kebe, Senegal), Thomas Snider (Partner, Head of Arbitration, Al Tamimi & Co., UAE), Suzanne Rattray, FCIArb (Director, Rankin Engineering Consultants, Zambia).

The session focused on the practical factors that make a seat attractive for parties in international arbitration. It looked at the seven C’s that would make users willing to select a seat, these are: Convention, Clarity, Courts, Centers, Community, Connectivity, and Creativity.

The panel also highlighted that where a foreign seat is selected, African practitioners can still negotiate for the arbitration to be administered by an African arbitral centre.

Attention was also directed at the proliferation of arbitral institutions in Africa. The consensus was that it is a positive development as it could help to drive awareness and foster a sense of ownership in the arbitration process. It was emphasized that in the short-term collaboration is required between the institutions. And in the long term there is a need for consolidation and specialization that would see some institutions become largely domestic, while others regional, and a few, hubs for international arbitration.

The panel also noted that practitioners must re-tell the African arbitration story, especially with regards to enforcement of awards. Many awards are enforced without fanfare, but sadly, the negative experiences have enjoyed greater publicity.

3. Africa as the new El Dorado of arbitration: Creating an avant-garde legal landscape

Members of the panel: Sami Houerbi (moderator) ((former) Director of ICC Dispute Resolution Services for Eastern Mediterranean, Middle East & Africa, Tunisia) Tunde Fagbohunlu, SAN (session coordinator) (Partner, Aluko & Oyebode, Nigeria), Moses Adriko SC (Managing Partner, MMAKS Advocates, Uganda), Githu Muigai SC (Senior Partner, Mohammed Muigai Advocates, Kenya), Dany Khayat (Partner, Mayer Brown, France), Daniel Wilmot (Partner, STEWARTS, United Kingdom), Laurie Achtouk-Spivak (Counsel, Cleary Gottlieb, France)

The panel commenced by agreeing that Africa was behind on the international arbitration scene. And it urged African practitioners to rise to the challenge as the (AfCFTA) could be the game changer. Re-echoing the previous session, the panelists encouraged African arbitral institutions and stakeholders to adopt three C’s; cooperation, collaboration, and communication to foster the growth of arbitration on the continent.

The theme of the session was questioned since El Dorado notionally refers to an unattainable ideal or a mirage. Africa’s aspiration is certainly attainable the panelists insisted.

The session also lamented that some traces of the once pervading notion amongst African lawyers that arbitration was harmful to their business still lingered. They encouraged continuous collaboration with Bar Associations and training of lawyers to completely eradicate this notion.

The panel was also optimistic that expansion in Africa’s technological infrastructure as witnessed in the Fintech boom on the continent presents an opportunity to create the desired El Dorado. Amongst others it was noted that technology could enhance case management systems and reduce the overall costs of arbitration significantly.

The panel also discussed the need for Africa to develop common value propositions to enhance its capacity building and diversity initiatives. The need for better data management systems to help track and assess progress was also emphasized.

The panel concluded by noting that arbitration remained the preferred dispute resolution process on the continent. African respondents still pick ICC arbitration as the top option. They also highlighted that all 21 Investment laws passed by African countries between 2011 and 2021 made reference to arbitration.

4. Judicial innovation within jurisdictional limits: Practical considerations

Members of the panel: Abimbola Akeredolu, SAN (moderator) (Partner, Banwo & Ighodalo, Nigeria), Seyilayo Ojo, FCIArb (session coordinator) (Senior Partner, S. O. & C Legal, Nigeria), Marietta Brew Appiah Opong (Former Attorney General and Minister for Justice, Republic of Ghana), Hon. Justice Adebola Adefope-Okojie, JCA (Justice of the Court of Appeal, Nigeria), Paulman Chungu (Co-Managing Partner, Ranchhod, Chungu Advocates (‘RCA’), Incoming Chairman, Zambia), Jimmy Kodo (Technical Adviser to the President, OHADA, Ivory Coast).

The panel presented many case studies from all over Africa where the courts adopted an innovative approach to support arbitration and protect awards duly rendered from unmerited set aside attacks. These included the OHADA Common Court of Justice saving an arbitration even in the face of a pathological arbitration clause, the Practice Direction issued by the Chief Justice of Nigeria encouraging courts to order parties to respect arbitration agreements and award costs against obstinate parties, and a decision of the Egyptian courts that recognized the validity of virtual hearings.

The panel also mentioned the innovative approach of a Ghanaian Judge who used the principle of taking judicial notice to supply evidence needed to enforce an award where the Applicant omitted to produce evidence that the seat of award was a signatory to the New York Convention.2

Other judicial innovations mentioned included Multidoor Courthouse schemes (e.g. in Nigeria) and partnership with arbitral institutions which have supplied much needed training for judges. There was also a recommendation that the courts should create an ultra-fast track process along with specialist judges to handle arbitration related proceedings.

5. Emerging areas in Arbitration: Moving with the trend

Members of the panel: Dr. Sally El Sawah (moderator) (Founding Partner & Principal, El Sawah Law, France & UK ; Deputy Secretary General, African Arbitration Association, Kigali, Rwanda), Akin Ajibola (session coordinator) (Partner, Bola Ajibola & Co, Nigeria), Odinaka Okoye (session coordinator) (Associate, Aelex, Nigeria), Thierry Tomasi (Partner, Herbert Smith Freehills), Ijeoma Ononogbu (Member, ODR, Task Force International Mediation Centre), Ucheora Onwuamaegbu (Consulting Attorney International Arbitration Practice Arent Fox, Washington, DC, USA).

The panel acknowledged that arbitration does not operate in a vacuum. It closely follows market realities and trends. The session thus tackled three of the trends most relevant to Africa, namely climate change disputes, online disputes resolution (ODR) and the current evolution of mining and energy disputes.

Climate change disputes are relevant to Africa for three key reasons: most African economies rely largely on the extractive industry, Africa needs to meet its infrastructure investment needs with greener technology and lastly, Africa’s vulnerability to the effects of climate change is on the rise.

On mining and energy disputes, the panel suggested that Africa could set a trend in two aspects. Firstly, by promoting the option of keeping projects open during dispute resolution. And secondly, the use of proactive dispute avoidance measures like the ICC Dispute Boards.3 Other suggestions include the adoption of non-pecuniary benefits instead of mega awards that are difficult to enforce.

Africa’s chance to leapfrog its disputes sector through ODR was also highlighted. The young tech-savvy demography and the boom of Fintechs are all positive indicators. Several ODR initiatives gaining traction in Kenya, Tanzania, and Nigeria were also discussed along with the prospective impact of artificial intelligence and blockchain technology. ODR could also be a great opportunity for Africa to close the access to justice gap.

And finally, the panel noted that individual practitioners must be mindful of the carbon footprint of arbitral proceedings and strive to reduce it through deployment of technology in the areas of document management systems and virtual proceedings or ODR.

6. The role of arbitration in the development of new areas of intellectual property

Members of the panel: Prof. Bankole Sodipo (moderator) (Senior Partner, G.O. Sodipo & Co., Nigeria), Obosa Akpata (session coordinator) (Managing Partner, Patreli Partners), Pauline Macharo (Deputy Chief Negotiator Kenya-USFTA Agreement, Ministry of Industrialization, Trade and Development), Stavros Brekoulakis (Professor, Queen Mary University, United Kingdom), Priscilla Ogwemoh (Managing Partner, Kevin, Martin & Ogwemoh, Nigeria).

The panel opened with the acknowledgment that intellectual property rights protection and enforcement is critical to fostering innovation and development and noted that the efficient resolution of IP disputes is important for Africa.

The panel tackled the thorny issue of arbitrability of IP disputes. The distinction was made that the purely contractual aspects of IP disputes are arbitrable while care must always be taken when the dispute touches on the grant and validity of IP rights.

Attention also turned to the arbitration of pharmaceutical and biotechnology patents especially in light of the campaign for waiver of patent rights over COVID vaccines. These could lead to disputes from an investment arbitration perspective, though the challenge would be whether a patent right qualifies per se as an investment.

Other advantages of arbitration in IP disputes include the privacy and confidentiality which it could afford parties especially in the context of trade secret disputes. Also, IP rights are essentially territorial, but the products and service they cover might be traded internationally. The extra-territorial reach of arbitration proceedings could be another advantage in this context.

The panel urged African practitioners to retool themselves for the specialization that arbitration in IP and digital media demands to stem the tide of exportation of arbitral disputes.

7. Conversation between Claudia T. Salomon and Diamana Diawara

During the interview between Diamana Diawara (Director, Arbitration and ADR for Africa, ICC) and Claudia T. Salomon (Incoming President, ICC Court), Claudia started by lauding her predecessor Alexis Mourre for instituting gender parity in the ICC Court from 2018. She indicated that, during her term, the Court will continue with the diversity drive and focus on a client mindset.4 The Court will prioritize predictability, transparency, and efficiency to ensure that parties in an arbitration can engage meaningfully with the process and obtain a high-quality experience throughout the process. She ended by reassuring Africa that ICC is committed to continue to grow its footprint on the continent with plans to establish a presence for the ICC Court. The full interview can be viewed <span style="text-decoration: underline;">online.</span>

8. Sustaining the value of international arbitration through the tool of ethics: A word from the stakeholders

Members of the panel: Doyin Rhodes-Vivour, SAN, C.Arb (moderator) (Managing Partner, Doyin Rhodes-Vivour & Co; Member, ICC Court of Arbitration, Nigeria), Stanley U. Nweke-Eze (Session Coordinator) (Senior Associate, Templars, Nigeria), José Feris (Partner, Squire Patton Boggs, France; Former Deputy Secretary General, ICC Court), Prof. Gbolahan Elias, SAN, (Partner, G. Elias & Co, Lagos), Patrick Taylor (Partner, Debevoise & Plimpton LLP, London, UK), Antonia Birt (Partner, Curtis Mallet-Prevost Colt & Mosle LLP, Dubai).

The panel took a deep dive into the diverse issues of ethics that arise in arbitration. These issues were viewed from the differing perspective of arbitrators, counsel, funders, expert witnesses and also the parties.

The panel first discussed frivolous dishonesty and fraud allegations and arbitrators’ duty of disclosure. Questions were posed about some of the emerging ethical duties of arbitrators such as the duty of transparency about availability and efficiency, and the arbitrator’s obligation to investigate corruption in the underlying transaction. The panel expressed the difficulty compliance with these duties entail.

The discussion also zoomed in on the tensions that emerge because of the varying ethical obligations that arise from different legal systems. The possibility of arbitrage of these divergent ethical obligations which could make the playing field uneven between the parties was also pointed out. This danger plays out in areas of document production, witness preparation, privileged ‘without prejudice’ communications, and counsel undertaking amongst others.

The panel wondered whether the rules of confidentiality in arbitration make it difficult for external bodies to get information about unethical conduct to enable them discipline erring practitioners. And in that case, who could waive confidentiality in such circumstances. The session also shone a light on ethical issues around third-party funders and lawyers acting as expert witnesses.

The panel reached the conclusion that while it was difficult to give definitive answers on ethical issues in the absence of a mandatory uniform code of ethics in international arbitration, the situation was not hopeless. One recommendation shared by the panel was to identify the divergence in ethical standards early enough in proceedings and agree on common rules to close the gaps and afford parties a level playing field. Also, the panel advocated a shared obligation between parties and arbitrators for disclosure with parties requesting the disclosures they desire.

9. COVID-19: Accelerating the use of technology in arbitration in Africa: Challenges and opportunities?

Members of the panel: Dr. Ademola Bamgbose (moderator) (International Arbitration Lawyer Hogan Lovells LLP ; Director Africa Arbitration Academy, United Kingdom), Dr. Adeyemi Agbelusi, FCIArb (session coordinator) (Principal Partner, Berean Associates, Nigeri), Anish Wadia, FCIArb (Independent Arbitrator and Mediator; Board Member,Chinese European Arbitration Association (CEAA), Germany), Nania Owusu-Ankomah, MCIArb (Partner - Bentsi-Enchill, Letsa & Ankomah, Ghana), Obioma Ofeogo (Associate, Quinn Emanuel, France), Ashwita Ambast (Legal Counsel, Permanent Court of Arbitration, Mauritius).

The panel which was largely a young practitioner’s session agreed that COVID 19 has provided opportunities for technology adoption which would ordinarily not have been available. This also provided an opportunity to close the distance between senior and junior arbitrators. The panel encouraged young practitioners to be creative and leverage their greater propensity for technology as an advantage.

The panel recognised the challenges and limitation of technology. It also noted that the change-resistant mindset among some practitioners may scuttle the chances of making the most of the situation. Other challenges with virtual hearings that were identified include time zone differences and the cost of technology.

The panel advocated continuous training and demonstration of technology in arbitration to persuade the sceptics. This would also aid the development of virtual advocacy capacity.

10. AfCFTA Investment Protocol: A tool for a common African position on international investment law?

Members of the panel: Funke Adekoya, SAN, (moderator) (Founding Partner, AELEX, Nigeria), Foluke Akinmoladun, C.Arb (session coordinator) (Managing Solicitor, Trizon Law Chambers, Nigeria), Beatrice Chaytor (Senior Expert, Trade in Services (Technical) Department of the Trade and Industry Africa Union, Ethiopia), Dr. Petina Gappah (Principal Legal Advisor, Office of the Sec-Gen AfCFTA Secretariat, Ghana), Leyou Tameru (Legal Consultant and Founder, I-Arb Africa, Ethiopia).

The panel had as its focus the most significant economic development on the continent, the African Continental Free Trade Area Agreement (AfCFTA). The session started by highlighting two lessons from the Pan-Africa Investment Code (PAIC) and the work of the Regional Economic Communities (RECs):

  • The investment facilitation promotion and the balance between investor and host state rights;
  • What the PAIC and RECs can bring to bear in terms of the development of the AfCFTA Protocol on Sustainable Investment (PSI). The panel recognized that the PSI has a unique opportunity to rewrite the investment rules in Africa, and carefully design an effective regulatory framework that would attract investment to Africa.

The panel next turned to the issue of how to manage trade and investment disputes under the AfCFTA. The AfCFTA dispute resolution mechanism, which is inspired by the WTO dispute settlement mechanism, comprises three tracks: an adjudication track, an ADR track that uses the office of the Secretary-General for mediation and conciliation, and the arbitration track. However, private parties are not currently permitted to use the process.

The panel also noted that currently from data available on BITs in Africa, only one third of African BITs are intra-African. The hope is that AfCFTA will change this and especially open the door for African SMEs to trade more within the continent.

11. Third party funding - pros and cons

Members of the panel: Prof. Koyin Ajayi, SAN, (moderator) (Managing Partner, Olaniwun Ajayi LP, Lagos, Nigeria), Kolawole Mayomi, FCIArb (cession coordinator) (Partner, SPA Ajibade & Co, Nigeria), Ned Beale, (Partner, Hausfeld & Co LLP, United Kingdom), Zuko Nonxuba (Chief Executive Officer, Nonxuba Inc, South Africa), Ryham Ragab (Group General Counsel, Samcrete for Engineering Investments, Egypt), Tunde Ogunseitan (Partner, Ogunseitan Arbitration, United Kingdom & Nigeria).

The session kicked off with an overview of third-party funding. Some of its disadvantages where highlighted, notably that it makes settlement difficult as the stake and interest of the third-party funder and that of the party may not align. Third-party funding is an expensive way to raise financing as the interest rates are rather high. It thus adds costs and makes the arbitration process more expensive.

The panel also swung the other way and examined the pros of third-party funding that include helping claimants prosecute claims that would otherwise be abandoned considering the costs of international arbitration. Third-party funding could also help African parties have a level playing field in pursuing their claims.

The panel tackled the thorny issue of disclosure and pointed out that under the ICC guidance note, arbitrators should disclose third-party funding situations,5 as an arbitrator may be related to a third party who has an interest in the award; this could lead to successful set aside proceedings.

12. In-house arbitration: examining the use of arbitration in employment disputes

Members of the panel: Sola Adegbonmire (moderator) (Managing Partner, Sola Ajijola & Co., Lagos), Oyinkan Badejo-Okusanya, FCIArb (session coordinator) (Partner, ALP NG & Co., Nigeria), Prof. Offornze Amucheazi, SAN (FCIArb, Principal Partner, Amucheazi, Ozioko & Co; Professor of Arbitration & Employment Law, Nnamdi Azikiwe University, Nigeria), Anne Abeja (Company Secretary/Head of Legal and Compliance, Housing Finance Bank, Uganda), Folabi Kuti (Partner, Perchstone & Graeys, Nigeria), Muyiwa Olulaja (Head, Talent Management, First Bank of Nigeria Ltd).

The panel commenced by looking at the contention that there is a distinction between general commercial contracts and employment contracts and that arbitration may not apply to employment disputes. They agreed that the constitutional imperative for observing fair labour practices imposes some limits on using arbitration in employment disputes.

The panel also noted that the cost of arbitration may create unequal arms between the employer and employee and except they are volunteer arbitrators, the process might be unfair to the employee. Other reasons advanced for not choosing arbitration in employment disputes include: maintaining internal confidentiality, inbuilt grievance management processes, or the risk of arbitration upsetting established internal policies.

The panel however balanced the views that arbitration might still be a better alternative to litigation in employment disputes if the issue of fairness can be tackled perhaps through the use of court-connected arbitration centres like the ADR Centre of the National Industrial Court of Nigeria (NICN).6

13. Debate-Style session: ‘Have regional initiatives expanded the scope of arbitration practice in Africa?’

Members of the panel: Samantha Nataf (moderator) (De Gaulle Fleurance & Associés, France), Hamid Abdulkareem (session coordinator) (Partner, Aluko & Oyebode, Nigeria), Fidelis Adewole, FCIArb (session coordinator) (Partner, G. Elias & Co, Nigeria), Timi Balogun (Curtis Mallet-Prevost, Colt & Mosle LLP, USA), Luisa Cetina (Anjarwalla & Khanna, Kenya), Priyesh Daya (Webber Wentzel, South Africa).

The consensus that emerged from the debate is that the initiatives have delivered a wide range of trainings, increased the number of qualified practitioners, turned the tide of judicial sentiments in favour of arbitration, brought in new dispute types to arbitration, and led to law reforms including ratification of the New York Convention.7

The overall tone of the session indicated that significant progress had been made in Africa. But the panel warned about excessive reliance on government funding for arbitral centres. The panelists also lauded the African Promise,8 and the ICC Africa Commission9 which could increase diversity in international arbitration.

The 5th ICC Africa Conference on International Arbitration was kindly sponsored by Diales, Cleary Gottlieb Steen & Hamilton LLP, White & Case. For sponsorship opportunities, please contact sponsorship@iccwbo.org.


1
https://afcfta.au.int/en

2
Shikari Ltd v. The Broad Band Home Limited, Misc/0128/2018, available at https://lawsghana.com/judgement/Ghana/High-Court/385

3
https://iccwbo.org/dispute-resolution-services/dispute-boards/

4
See C. Salomon, ‘International Arbitration with a Client Mindset’, ICC Dispute Resolution Bulletin, issue 2021-2 (https://library.iccwbo.org/dr.htm).

5
Paragraph 27 of the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration provides: ‘In assessing whether a disclosure should be made, an arbitrator or prospective arbitrator should consider relationships with non-parties having an interest in the outcome of the arbitration, such as third-party funders as well as relationships with other members of the arbitral tribunal, as well as experts or witnesses in the case’.

6
https://nicn.gov.ng/adr-center

7
The list of ratifying African parties is increasing: Burundi (2014), Democratic Republic of the Congo (2014), Angola (2017), Soudan (2018) Ethiopia (2020), Malawi (2021), Seychelles (2020) (https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards/status2).

8
https://researcharbitrationafrica.com/the-african-promise/

9
Established in 2018, the ICC Africa Commission aims to strengthen the arbitration infrastructure throughout the continent, expanding the range of ICC activities and the pool of African arbitrators currently qualified and available to oversee the many disputes that arise in the region.The list of members and ambassadors of the ICC Africa Commission is available at https://iccwbo.org/dispute-resolution-services/africa-commission/.