International arbitration in Africa discussed at the CIArb conference

September 1st, 2017

Chief Judge of the Federal Capital Territory of Nigeria, Justice Ishaq Bello, was one of the speakers at the CIArb International Arbitration conference.

By Kgomotso Ramotsho

The Chartered Institute of Arbitrators (CIArb) President, Nayla Comair-Obeid, said that she believed that the newly drafted International Arbitration Bill B10 of 2017 (the Bill) by the South African government, ready to be considered, will hopefully open doors to a flourishing future of international arbitration. She said that South Africa (SA) will be an example to other African jurisdictions.

Ms Comair-Obeid said this in her welcoming speech at the CIArb International Arbitration Conference held in Johannesburg in July where delegates from all over the world came to discuss international arbitration. She noted that she was pleased that the conference was taking place in Johannesburg, as Johannesburg is a city with opportunities in the arbitration field.

Ms Comair-Obeid pointed out that the CIArb was the leading institution for the promoting of education and training in the profession and in the field of arbitration. She said that capacity building and education were the key to raising awareness about alternative dispute resolution (ADR) and arbitration, and that the CIArb is mandated to globally promote the resolution of private dispute, by litigation through education and training and participating in ADR.

Deputy Minister of Justice and Constitutional Development, John Jeffery, said in his keynote address, that arbitration offers many advantages and is typically faster, less formal and more tailored to the particular dispute than court proceedings while, at the same time, retaining the benefits of impartial expert adjudication. Mr Jeffery added that the Bill makes provision for the confidentiality of arbitral proceedings where such proceedings are held in private.  He noted that when an organ of state is a party to arbitration proceedings, such proceedings must be held in public due to the public interest in the matter.

Mr Jeffery said that in terms of clause 16, a foreign arbitral award may be recognised in SA as required by the New York Convention.

Furthermore, a foreign arbitral award must, on application, be made an order of court, and be enforced in the same manner as any judgment or order of court, provided it complies with the provisions of the clauses of the Bill dealing with the recognition and enforcement of foreign arbitral awards.

Mr Jeffery said that with regard to the transitional arrangements, Model Law will apply to all international agreements, irrespective of whether the agreement was entered into before or after the commencement of the Bill.

President of the Chartered Institute of Arbitration (CIArb), Nayla Comair-Obeid, gave a welcoming speech at the CIArb International Conference held in Johannesburg in July.

Chief Judge of the Federal Capital Territory of Nigeria, Justice Ishaq Bello, said that there was a systemic problem, which needs intervention and that systemic problem is ADR. He said by perception lawyers and judges who went for training on resolving disputes are hardly amenable to ADR mechanisms. Mr Bello added that particularly, in Nigeria, it is expressed in the Constitution that it is the duty of the judiciary to address disputes between individuals and institutions.

Mr Bello said a question that must be asked is: What has been done to make lawyers and judges know that they have a social responsibility to go by the alternative means so that peace and tranquillity in the society is attainable. He said it will only be talked about as regime, legislation and practice directives unless minds of lawyers and judges were changed. Mr Bello added that various law schools in his home country, Nigeria, teach dispute resolution. He pointed out that even when law students go to law firms for training, they select law firms that have ADR mechanisms in place, so that students can learn what they have been taught at law schools.

Managing partner at Olawoyin and Olawoyin, Adewale Olawoyin, said that arbitration has been accepted as a generally commercial fair and inadequate process to resolve disputes. He said party autonomy is one of the key elements of arbitration, which is the cornerstone principle of arbitration. Mr Olawoyin added that the principle goes with a common saying that arbitration depends on the arbitrator the party has chosen.

Mr Olawoyin said selecting an arbitrator is one of the most important functions that a party to arbitration proceedings would do apart from actually entering into an arbitrational agreement. He added that choosing a clear minded, impartial and competent arbitrator is very important. He noted that choosing the right arbitrator should not be limited to choosing an arbitrator based on the worth of their invoice. He said there are certain details that a party has to investigate, such as the background of the arbitrator in terms of the particulars of the dispute at hand.

University of Stellenbosch’s Professor, David Butler, was one of the South African delegates discussing international arbitration.

Mr Olawoyin pointed out that the party might need to look at the culture of the particular arbitrator they want to choose. He said that generally speaking it has been disappointing that the dispute resolution process is shaped by the culture of those who practice it.

University of Stellenbosch’s Professor, David Butler, in his discussion said that when a state owned company has entered into a commercial contract and takes certain actions in terms of the contract, it would seem that in certain circumstances that the action will still be consumed as administrative action. He added that one can have a widely worded arbitration clause in the contract and the dispute relating to the action taken by a state company will be regarded as a commercial action or administrative action when it could possibly not be.

Mr Butler noted that the type of contract he was discussing would normally be as a result of a tender process, but the discussion was not limited to those circumstances. He said that it should be noted that although there is a point of adopting Model Law for International Commercial Law Arbitration, it will not affect the particular issue of the administrative action. He pointed out that s 33 of the Constitution, provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

Partner at Quin Emanuel Urquhart and Sullivan in Paris, Isabelle Michou, spoke about when dispute arises between foreign investors and host states the investment was made at.

Partner at Quin Emanuel Urquhart and Sullivan in Paris, Isabelle Michou, said when a dispute arises between a foreign investor and a host invest country, the foreign investor is offered to arbitrate. She added that the process requires that an investor fills in a document requesting for arbitration and once the offer is accepted, the offer and the acceptance serves as a binding consent to arbitrate.

Ms Michou noted that the above mentioned method is the reason why treaty based arbitration is called arbitration without priority, because it does not require prior contracting between foreign investor and the host state. She pointed out that consent on investments arbitration has various sources and that African countries still very often include a contract between a foreign investor and the host state of the investment arbitration.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2017 (Sept) DR 12.