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( Source of the document: ICC Digital Library )
Registrar, LCIA-MIAC Arbitration Centre, Mauritius
In 2016, Angola ratified the 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention),becoming the 157th country worldwide– and the 34th in Africa –to accede to this multilateral treaty that is a cornerstone of international commercial arbitration. While ratification reflects a desire for economic and legal renewal, the implementation of the Convention will pose some challenges.
ANGOLA; NEW YORK CONVENTION
The Republic of Angola is a resource-rich country in southwestern Africa which borders the Democratic Republic of Congo, Namibia and Zambia. It is one of five lusophone countries in Africa – the others are Cape Verde, Guinea Bissau, Mozambique and Sao Tomé and Principe –and has a legal system based on Portuguese civil law.
After gaining independence from Portugal in 1975, Angola descended into a civil war that lasted until 2002. Since 2002, when it re-entered the global economy, Angola has set about reforming its laws and institutions in an effort to attract foreign investors, especially in the oil, gas and mining sectors. The Angolan economy has remained dependent on oil and gas, which has made it vulnerable to external shocks caused by fluctuations in global oil and gas prices. As an illustration, the 2014 plunge in these prices had a profound negative impact on the Angolan economy, and the government is taking measures to diversify and attract investors to other sectors.
Angola’s ratification of the New York Convention on 12 August 2016 through Resolution No. 38/2016 came in the wake of a new Private Investment Lawenacted in 2015 (Law No. 14/15 of 11 August 2015). The Private Investment Law wasdesigned to attract foreign investors by providing incentives and streamlining the administrative processes of investing in Angola. The World Bank Ease of Doing Business Index 2017 places Angola in 182nd position out of 190 economies – a stark illustration that Angola still lags behind in creating an environment that is conducive to business. It is expected that itsratification of the New York Convention will be a further signal that Angola is open to foreign investors.
Domestic and international arbitration is governed by the Voluntary Arbitral Law (Law No. 16/03 of 25 July 2003), which is based on the old Portuguese Arbitration Law (Law No. 31/86 of 29 August 1986) and the 1985 UNCITRAL Model Lawon International Commercial Arbitration.It contains separate sections on domestic and international arbitration, and provides for institutional arbitration. The Voluntary Arbitral Law is complemented by Decree No. 4 of 2006, which authorises the establishment of arbitral institutions, although no such institutions have yet been set up in Angola.
The enforcement of foreign arbitral awards under the New York Convention will replace the previous regimeunder whicha party seeking to enforce a foreign arbitral award had to satisfy several conditions of enforcement specified in the Angolan Civil Procedure Code.
Enacted after the end of the civil war, the Voluntary Arbitral LawreflectedAngola’s economic and political priorities at the time, which were to attract foreign investment. Itspreamblerecognised the need for a modern arbitration law to facilitate effective dispute resolution in a country that was on the threshold of opening up economically and politically. Angola’s ratification of the New York Convention is further acknowledgement of the importance of international arbitration in attracting foreign investors.
As Angola pursues its efforts toremove any factors that may inhibit foreign investment, we may yet see it ratify the Convention on the Settlement of Investments Disputes Between States and Nationals of Other States (Washington Convention) and enter into more bilateral investment treaties, although its readiness to do so may be affected by the current backlash against investor-state dispute resolution.
Although ratifying the New York Convention is an important step for Angola, investors and dispute resolution experts will be eager to see how the Convention isimplemented. Judging by the experience of other countries, Angola may have several challenges ahead of it. The first will be to ensure that its judiciary is trained on the proper application of the Convention. The second will be to ensure that parties seeking to enforce awards are not burdened with a cumbersome and inefficient enforcement process. The third challenge may stem from Angola’s linguistic insularity:as a lusophone country in a region where these countries are not always included in mainstream discussions on international arbitration (generally in English and French), it may find itself marginalised, which could prevent judges and lawyers from learning from the experiences of their peers in the region and slow down the implementation process.