Report of the Conference on Arbitration Institutions / African Union Commission / Addis Ababa (ETHIOPIA), Thursday 23 July 2015
On 23 July 2015 at the very graceful premises of the African Union (AU) Commission in Addis Ababa, 63 arbitration practitioners in Africa gathered to discuss the role of African arbitration institutions in the development of arbitration in Africa. The conference was organised by Dr Emilia Onyema, an arbitration specialist at SOAS University of London and co-convened by Judge Edward Torgbor of Kenya. The AU Legal Counsel's Office co-hosted the conference with SOAS while ICAMA (Abuja), Foley Hoag LLP (Washington D.C), Stephenson Harwood LLP (London) and LACIAC (Lagos) sponsored the event.
The OHADA Common Court of Justice and Arbitration (CCJA) was represented by Dr. Jimmy Kodo, technical advisor to the President of the CCJA and Mr. Narcisse AKA, Secretary General of the Arbitration Centre of the CCJA.
The conference set out to examine why arbitration references involving at least one African party are not administered by institutions in the continent. The participants all agreed that there is a need to interrogate this and find answers to it so that arbitrations generated by Africans are resolved in Africa by African arbitrators and practitioners. In pursuance of this aim, there were panel discussions by the chief operating officers of various arbitration institutions and users of arbitration. The conference started with a short welcome address by Prof Vincent Nmehielle, the General Counsel of the AU in which he referred to the need to set up a pan-African arbitration court for Africa and an African institute of Arbitration for training in arbitration. The conference welcomed the suggestions, implementation of which will need to be fleshed out and possibly led by the African Union Commission. Following Prof Nmehielle's opening remarks, Dr Onyema set out the purpose of the conference as articulated in her Discussion paper and stated above.
The first panel discussions was from the following regional arbitration institutions: AFSA/Africa ADR of South Africa, Lagos Regional Centre (West Africa), Kigali Centre (East Africa), and OHADA. This panel was chaired by Ms Alexandra Meise of Foley Hoag LLP. The second panel discussion was from the following national institutions: Ghana Arbitration Centre, Lagos Court of Arbitration Centre, LCIA-MIAC (Mauritius), Addis Ababa Chamber Centre, and Zambia Centre for Dispute Resolution. This panel was chaired by Chief Bayo Ojo, SAN of ICAMA (Abuja). The two panels discussed the nature of the services these institutions offer and each institutions unique service. Both sets of institutions administer domestic and international arbitration references, organise trainings and create awareness of arbitration in their respective domains. Ms Bernadette Uwicyeza of Kigali noted the interesting outreach service the centre offers to businesses to create an awareness of arbitration. She stated that the Centre is beginning to see a change in the behaviour of businesses who now more frequently seek information on the use of arbitration from the centre. Ms Deline Buekes of AFSA/ADR Africa mentioned AFSA recent agreement to set up an Africa/China joint arbitration centre in both Shanghai and Johannesburg to which she invited other institutions in Africa to participate. This “super” institution will administer arbitration of disputes emanating from Africa/China business relationships. Mr Aka of OHADA CCJA noted their relationship discussions with both the Lagos Regional Centre and Kigali Centre. He also noted that though OHADA (since 2008) had expanded its official languages to four (French, English, Spanish and Portuguese), the texts of OHADA laws were yet to be translated into the other languages from French but assured they will be translated. Mr Ikatari of the Lagos Regional Centre stated the willingness of the Centre to invite more Africans onto its panel of arbitrators. Ms Megha Joshi of the Lagos Court of Arbitration (LCA) centre noted the LCA small claims scheme specifically set up to help aspiring arbitrators gain experience of arbitration. Mr Duncan Bagshaw of LCIA-MIAC mentioned the affiliation of the centre with the London Court of International Arbitration (LCIA) and how this has impacted on the credibility of MIAC but also noted that such affiliation is not a fundamental requirement for a centre to thrive. Mr Emmanuel Amofa of Ghana Arbitration centre (GAC) mentioned the independent nature of the GAC and the role of the Ghana ADR Act in the operation of the centre. From the Addis Ababa Chambers, Mr Yohannes Woldegebriel noted the growth of the centre's domestic caseload and made a clear link with the increase in construction activities in Ethiopia for this year-on-year growth. Finally Judge Charles Kajimanga, as chair of the Zambia centre noted that since USAid funding for the centre ran out and training services were divested to the Chartered Institute of arbitrators, Zambia branch, the centre has basically remained inactive for lack of funding though it acts as appointing authority. Participants noted the refreshing opportunity of hearing from the various centres on what they do and expressed the need for better collaboration among the institutions.
The third panel was chaired by Prof Paul Idornigie of NIALS and was composed of arbitration practitioners who had used these and other international arbitration institutions. These users critiqued the services of the arbitration institutions and shared from their experience, ideas on viability and sustainability of African institutions. Panellists were from Uganda (Jimmy Muyanja), Ethiopia (Leyou Tameru), London (Kamal Shah and Stuart Dutson), Ivory Coast (Jimmy Kodo) and Kenya (Kariuki Muigua). The panel agreed that African institutions must have rules that are fit for purpose and are continually updated, keep costs down and be well equipped to meet the needs of their users. Dr Muigua kicked off the session with a clear list of various physical infrastructures which African governments need to implement for the states to attract international arbitration with seat in the continent. Some of these were security, funding of various governmental institutions, health facilities and their maintenance. Mr Jimmy Muyanja told an interesting story of the view of the Ugandan press on arbitration a decade ago which clearly showed the lack of understanding of arbitration and its relationship with the courts. He then discussed how these misconceptions were tackled leading to some changes in perception both by the media and the judges. He also mentioned an interesting concept of implementing an arbitration moot competition but for judicial officers (not students as is the norm) with judges acting as arbitrators for the moot. Dr Stuart Dutson of Eversheds LLP on his part noted the limitations of the more traditional international arbitration centres and urged African institutions to embrace innovations and distinctiveness while avoiding these. He listed cost and complicated proceedings as two of these limitations. Ms Leyou Tameru discussed the need for transparency by institutions on the arbitrators listed on their panels, need to publish awards for scrutiny, languages used by institutions, communication by institutions of their annual reports and events, among others, and finally the need for institutions to focus on intra-Africa trade and disputes arising there-from as the future. Mr Kamal Shah of Stephenson Harwood LLP listed the following issues which institutions need to address: timely response to emails and telephone messages, communicating to the public what they do, run their institutions like a company with a board of advisers, create a database of African arbitrators and make these available to other institutions. Others are to seek government support and patronage and funding, keep their procedures short and simple, create a forum for institutions to share experience, and engage with foreign law firms as collaborators. My Jimmy Kodo concluded the discussions with a list of areas OHADA CCJA is working on improving. These include more accessible information, improved website, provide template of suggested arbitration clauses, and to provide continuing professional training for arbitrators. Participants again had a lively discussion on the various issues and agreed that there is need for closer collaboration between African institutions and continued engagement with governments on the need to provide a viable space to attract arbitration to their states and for arbitration to thrive.
The fourth panel chaired by Prof Fidelis Oditah, SAN considered other legal issues which need to be in place to project arbitration in Africa. The panel was composed of Judge Edward Torgbor (Kenya) who discussed the availability of arbitral expertise on the continent; Dr Emilia Onyema discussed the need for judges to support arbitration; Mr Tunde Fagbohunlu discussed the role of practitioners in appointing African arbitrators. He specifically noted the connection between the firm of external lawyers appointed by clients and the choice of arbitrators. Finally, Mr Brett Hathaway, General Counsel DHL (Africa/ME) set out the four prerequisites an arbitration institution must possess before he considers using it. Prof Oditah concluded proceedings by noting that African states as parties, must also take some responsibility. He noted that for example, African states as parties, do not engage with the arbitral process in a timely fashion, they appoint foreign firms and foreign arbitrators, even with full knowledge of Africans with requisite expertise. It was concluded that it is for African businesses and governments to appoint suitably qualified African firms and African arbitrators, and this can always be done in collaboration with foreign firms.
The sessions were all very engaging with active participation from the delegates. It was agreed that this was a good initiative which must be encouraged so that there remains continued dialogue between the institutions, their users and the public at large. It was also agreed that the institutions need better collaboration among themselves which will start with better engagement with each other in fora such as the one provided by the conference. The involvement of the AU was lauded and it is hoped that the AU will engage more with various arbitration stakeholders on the continent.
This conference is the first in a series of four conferences which will focus on the functioning of each identified arbitration stakeholder (arbitration institutions, judges, states and arbitration practitioners). The convenors hope that the outcome of each conference will be implemented by each stakeholder and over a period of time, will monitor the impact of the change of attitude, on the numbers of arbitral references holding in the continent and the numbers of African arbitrators appointed in African disputes. The series of conferences are targeted at all of Africa and therefore draws participation from the various regions of Africa. This also includes the venues for the conferences. To this end the Lagos Court of Arbitration will host the second conference from 6-7 July 2016 on the theme “Rethinking the role of courts and judges in supporting arbitration in Africa”. The third conference in the series will then move to Cairo in 2017 to be hosted by the Cairo regional Centre on how African states can better support the development/growth of arbitration. The fourth conference in the series will hold in East Africa and will deliberate on how arbitration practitioners and users can participate in the development of arbitration in Africa. Dr Onyema believes that as each of these stakeholders develop and form a coherent whole, the continent will not only attract and host more international arbitration references, its domestic arbitral market will also grow. This will provide the much needed increase in arbitration caseload which will lead to the greater use of African arbitration institutions. This will in turn lead to the appointment of more African arbitrators and engage African courts and judges in determining important questions on arbitration, which will contribute to the global arbitral jurisprudence. This will also bring into the global arbitral space our “African voices”.
For further information, please contact:
Dr. Emilia Onyema
Email: eo3@soas.ac.uk