The rising popularity of arbitration in Africa has heightened the need for local lawyers, arbitrators and institutions to respond to demand
By Andrew Mizner
Africa has become a reliable source of work for many international arbitration lawyers in recent years, but much of that work has not been based in Africa. Cases have tended to go to international institutions such as the London Court of International Arbitration (LCIA) or ICC International Court of Arbitration (ICC), seated in Western Europe and argued by and in front of non-African lawyers and arbitrators.
The need for a more diverse pool of legal professionals and arbitral centres to greater reflect the countries involved in these disputes is obvious, as is the need for more cases to be heard in Africa itself, and those on the continent are actively taking steps to ensure that it happens.
On appointments
In terms of appointing African arbitrators, there has been some progress. Nathan Searle, a partner with Hogan Lovells in London, reports that 50 percent of the arbitrators handling his current African-related caseload are African or of African origin and he increasingly finds that “institutions and co-arbitrators have really taken on board suggestions that if it is a dispute in the region there should be someone from the region on the panel”.
While “there is still some work to do”, he is “encouraged by the number of African arbitrators who are getting appointments and repeat appointments”.
Searle’s Nigerian colleague, London-based associate Ademola Bamgbose, agrees: “Institutions are doing well in encouraging the appointment of African arbitrators.”
Athanase Rutabingwa of MRB Attorneys in Kigali says that in Rwanda, local lawyers and arbitrators “participate in international arbitration cases but still at a low rate” and that “most international matters are still handled by foreign lawyers”.
Those lawyers and arbitrators get stuck in the cycle of not having enough experience to be appointed and not being able to get the appointments to gain the experience, but it is slowly changing.
“As arbitration matures in Africa, there are people who are more qualified and experienced to do it, so it all has a snowball effect”, notes Thomas Kendra, a partner with Hogan Lovells in Paris. “It is a very gradual process, but it is definitely happening.”
Thankfully for those seeking experience, the large amount of infrastructure investment on the continent is producing a commensurate amount of disputes work, with Ethiopia, Ivory Coast and Senegal among the quickest-growing economies in the world this year, while Rwandan President Paul Kagame has set the goal of tripling the size of the country’s economy.
The continent’s more progressive institutions, such as the Kigali International Arbitration Centre (KIAC), or the Common Court of Justice and Arbitration (CCJA) in the Organisation pour l’harmonisation en Afrique du droit des Affaires (OHADA) region have accordingly seen increasing case numbers. As they develop their track records, investors and counsel can feel more confident that if they put an African seat in their arbitration clause, they will be supported by what Kendra calls “modern and progressive arbitration laws”.
“All that means that there is the potential for arbitrations and potentially arbitration that would maybe not necessarily have been seated on the continent before,” he continues, observing that a few international arbitrations are now being seated in African cities or having hearings for European-seated cases in Africa.
However, “it is going to be more medium term rather than short term before this becomes more the norm”, warns Searle.
Training time
During this transitional stage, the profession can promote itself further through education and training, but it is a process which takes time. Kendra, who has been involved with KIAC from the start, says “people are not going to just suddenly start using something that they know nothing about, so the first couple of years was very much an educational process”.
Established last year, the African Arbitration Association (AfAA) aims to help with that process, with a remit to promote and support arbitrators and institutions. “There are practitioners on the continent who do a lot of good arbitration work, but for some reason are not known internationally,” says Bamgbose, one of AfAA’s founders.
Aside from raising awareness, a key role of AfAA is providing information and opportunities to practice. “One of the things that we have tried to do is provide a platform where we can project these things to African arbitration practitioners in Africa.”
A coordinated push for training can also create an industry-wide standard of quality, while monitoring the state of the profession by recording appointments and the performance of various seats.
One of the best ways to tackle investor fears about the reliability of African institutions and courts is to embrace the international trend for greater transparency, suggests Kendra, “in order to reassure investors that arbitration seated within Africa is a reliable choice. Because otherwise they are worried that they will go through arbitration and the state courts will wade in and annul [an award] on not necessarily reliable grounds”.
The way law firms approach the discipline has also matured, reports Searle: “We are starting to see people marketing themselves as arbitration specialists.”
Leading jurisdictions
Rwanda has led the way by embracing and promoting KIAC and Rutabingwa confirms that since the centre’s establishment, “many arbitration cases are coming into Rwanda, mainly from the East African Community”.
He calls for further investment in “empowering the KIAC” and in training, “that will attract foreign clients to trust local arbitrators”.
There is a related need “to increase investor confidence in the Rwandan judicial system” and Rutabingwa acknowledges that arbitration is still under-used compared to litigation, “but is picking up rapidly”, thanks to KIAC. He is optimistic that this will continue: “There is therefore no doubt that more arbitration matters will come to Rwanda in future. This is further informed by the efficient legal and regulatory environment in doing business in Rwanda.”
Elsewhere, OHADA’s standardised business laws across West and Central Africa have given CCJA a great platform. Although it has been slow to attract cases, that should change over time.
The Cairo Regional Centre for International Commercial Arbitration (CRCICA) is well-trusted as the oldest arbitration centre in Africa, while the Casablanca International Mediation and Arbitration Centre (CIMAC) has a positive reputation, as did Mauritius before the LCIA withdrew, which has made it a lesser-known quantity for now.
The Arbitration Foundation of South Africa (AFSA) has broadened its appeal to attract international arbitration and while it is early days, Searle says it is “very well-placed” and “one to watch over the next few years”.
Nigeria, the continent’s biggest arbitration hub, is home to the Lagos Court of Arbitration, although it has not had a huge volume of international work yet and the country is limited somewhat by the delays in local courts, while Ghana is another jurisdiction to watch in West Africa.
Kenya is a little further behind, but “there have been some positive decisions out of the Kenyan courts on arbitration” which should improve its appeal over time, says Searle.
Part of the development process is encouraging greater use of domestic arbitration, to build practitioner experience, argues Bamgbose. “It would help to improve the international market’s perspective on arbitration practice in Africa generally.”
With local courts often struggling with caseloads, thriving local arbitration scenes “provide that bridge from domestic to international arbitration” and a chance for lawyers and arbitrators to prove themselves to the international community.
Bamgbose calls for governments and lawyers to push the agenda, concluding: “All hands are going to have to be on deck; institutions are definitely getting there first, but again, practitioners also have a role to play.” (
Arbitration (CRCICA) is well-trusted as the oldest arbitration centre in Africa, while the Casablanca International Mediation and Arbitration Centre (CIMAC) has a positive reputation, as did Mauritius before the LCIA withdrew, which has made it a lesser-known quantity for now.
The Arbitration Foundation of South Africa (AFSA) has broadened its appeal to attract international arbitration and while it is early days, Searle says it is “very well-placed” and “one to watch over the next few years”.
Nigeria, the continent’s biggest arbitration hub, is home to the Lagos Court of Arbitration, although it has not had a huge volume of international work yet and the country is limited somewhat by the delays in local courts, while Ghana is another jurisdiction to watch in West Africa.
Kenya is a little further behind, but “there have been some positive decisions out of the Kenyan courts on arbitration” which should improve its appeal over time, says Searle.
Part of the development process is encouraging greater use of domestic arbitration, to build practitioner experience, argues Bamgbose. “It would help to improve the international market’s perspective on arbitration practice in Africa generally.”
With local courts often struggling with caseloads, thriving local arbitration scenes “provide that bridge from domestic to international arbitration” and a chance for lawyers and arbitrators to prove themselves to the international community.
Bamgbose calls for governments and lawyers to push the agenda, concluding: “All hands are going to have to be on deck; institutions are definitely getting there first, but again, practitioners also have a role to play.” (
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