The fifth International Chamber of Commerce Africa Conference on International Arbitration considered the rising appeal of Africa as a site for arbitration, the existing obstacles and future opportunities, and ethical problems.
In the opening remarks on the first day of the International Chamber of Commerce (ICC) Africa Conference on International Arbitration, ICC Secretary General John Denton said the settlement of disputes is “critical” to enabling business and that the ICC aims to increase its footprint and engagement in Africa.
Dororthy Ufot, founding and managing partner of Nigerian law firm Dorothy Ufot & Co, noted that although “cost effective arbitration procedures” are still needed in African arbitrations, the role of African women in the ICC International Court of Arbitration “has progressed massively”, using as an example the arrival of Claudia Solomon as the first female president.
Otunba Adeniyi Adebayo, Nigeria’s Minister of Industry, Trade and Investment and a lawyer with Bentley, Edu & Co in association with Irving & Bonnar said that in Nigeria, there remains a “lack of awareness” in the business community of the dispute resolution methods available to them, and a “difficulty in enforcing awards” in Africa, as well as “rising costs”, caused in part by a lack of defined fee scales for arbitrators. All of these factors “have made arbitration quite unpopular in the African region”, he said.
Funmi Roberts, a principal and founder of Nigerian law firm Funmi Roberts & Co, noted increased foreign direct investment (FDI) in the African region. She said the “economic growth of Africa continues to rise”, leading to increased bilateral and multilateral investment treaties. She added that efforts have been made to grow arbitration as an industry across Africa.
From Walls to Bridges
The rise of arbitration in Africa has been under discussion for several years, and the conference’s first plenary session considered a practical approach to expanding its scope, with Thomas Snider, United Arab Emirates-based partner and head of arbitration at Al Tamimi & Co, laying out a number of considerations for parties when entering into an arbitration, including whether the seat of arbitration is in a jurisdiction ratified by the New York Convention, whether there is “clarity in legal framework” in the jurisdiction, and whether the jurisdiction of choice has a “judicial system that is arbitration friendly”. He added that African parties “need to look outside the box” and “beyond London and beyond Paris” when arbitrating.
Suzanne Rattray, director at Rankin Engineering Consultants, noted that several African countries including Uganda, Malawi and Nigeria, are currently reviewing their laws, which shows “attempts to modernise arbitration procedures”.
Rattray noted that just because an arbitration occurs in an African seat does not automatically ensure neutrality or impartiality. Looking forwards, she said the successful development of infrastructure across the continent, in particular hotel construction and IT improvements had allowed African arbitration to grow, adding that in general “there has been measurable progress”, and that she is “quite positive about the future”.
Kamal Shah, partner and head of the Africa and Indian groups at Stephenson Harwood noted that many institutions including the ICC “are making big efforts to diversify appointments”, and that initiatives being “started by the younger generation is a good thing to see”. He also highlighted “initiatives like the African Promise to get more Africans on arbitrations related to Africa and non-Africa-related arbitrations”.
The real driver in all of this is that clients “are demanding diversity from their law firms” he said, a positive development because client-driven changes are “driven faster”. One problem, he said, is that although there are many great arbitrators, there is a “repetition” of these faces, thought he concluded by saying the region is in a better position than it was five years ago, “so the direction of travel is in the right way”.
Shah noted that in Africa, there are “too many [arbitral institutions] and some will inevitably fall by the wayside” in the future, adding that the focus needs to be on “regional co-operation” rather than international co-operation, highlighting that Nigeria and Cairo “have done very well” by focusing on regional co-operation already.
Rattray said that “we need to think about how to support institutions that we have rather than trying to make new ones”, adding that the consolidation of multiple arbitration institutions “could be possible” but questioning the appetite for it across Africa since established arbitration institutions “are quite concerned about not diluting their brand”. There is, however, an interest in collaborations, she concluded. Snider agreed that in the long-term, “arbitration institutions need to cooperate with one another”.
Ethics in Arbitration
Ethics issues in arbitration were discussed on day two of the conference. Squire Patton Boggs’ international dispute resolution partner José Feris, a former deputy secretary general of the ICC Court said: “There is no Bar of arbitrators,” adding: “The closest body in that respect would be the Chartered Institute of Arbitrators,” however, not all arbitrators belong to this body, he said.
One of the most important duties of arbitrators is the duty of disclosing circumstances which may affect their independence and impartiality, he continued A problem is that rules on disclosure are applied “differently depending on the location” said Feris, before questioning whether a more “universal standard” is needed. He also questioned whether the parties to the arbitration bear some responsibility: “Shouldn’t they be telling arbitrators what they want them to disclose?”. Feris noted that, this would help resolve the issue of arbitrators not knowing what to disclose.
Debevoise & Plimpton partner Patrick Taylor noted the disparity between confidentiality rules in various jurisdictions. In England and Wales, confidential communications must be marked “without prejudice” and settlement offers made under this cover “do not affect the merits of a case”. He contrasted this with jurisdictions like Belgium, where “the concept is not recognised at all”. He also noted the different rules in common and non-common law jurisdictions on the disclosure of privileged documents mistakenly received. In China and Brazil, there is “no obligation to return privileged documents” he said, so the “consequences of mistaken disclosure can be different depending on who the opposing counsel are and the jurisdiction”.
There are “definitely strategic asymmetries that can arise for users of arbitration and their counsel” said Taylor, which “creates the possibility to arbitrage ethical divergences to the advantage of one of the parties in different jurisdictions”. He questioned: “Should there be a mandatory standard ethical code for arbitration practitioners to level the playing field?” He said this “could be good to ensure all users of arbitration are able to access the same procedural tools and strategies” to present their case.
Antonia Birt, Dubai international arbitration partner at Curtis, Mallet-Prevost, Colt & Mosle,noted that the “making of fraud and dishonesty allegations without sufficient evidence” get “less attention” than these other issues, and that there are disparities between jurisdictions on whether it would be “permissible to withhold harmful documents from production”.
Outgoing ICC Court President Alexis Mourre said that the institution “is in a good position in Africa” but that there is still “much to do” including increasing the number of arbitrators in tribunals.
This article was originally published by International Comparative Legal Guides