22 Jun 2018
The 4th SOAS London Arbitration in Africa Conference was held on 2 to 5 May 2018 at the Kigali Convention Centre and brought together many arbitration practitioners from Africa and outside the continent.
The highlight of the Conference was the launch of the Arbitration in Africa Survey 2018[1]. This Report from the survey of African arbitration practitioners provided original data and information on their expertise, experience, skills and views on arbitration and the depth of their participation in domestic and international arbitration. This survey Report provided the facts on which to base future discussions on the expertise, experience, skills and participation of African arbitration practitioners.
Arbitration has been used as a dispute resolution mechanism in Africa for some time now. Many legal jurisdictions on the continent have embraced it as a preferred method of dispute resolution outside courts.
The Survey attracted respondents from 19 African and 12 non-African countries and was distributed in English, Arabic and French. The reporting period was from 2012-2017. A whopping 90% of the respondents are lawyers by training.
Regarding training, 81.7% of respondents had undergone some form of formal training in arbitration while 18.3% of respondents had not. Of those who had undergone arbitration training, the overwhelming majority (72%) had been trained by the Chartered Institute of Arbitrators (CIArb). Despite acquiring what would be seen as international certification in arbitration, there is little evidence to suggest that African CIArb trained arbitrators are appointed as arbitrators in international arbitration despite their holding similar qualifications as their non-African counterparts.
To further support the conclusion above that the CIArb is the primary arbitration training provider in Africa, of the 80.1% of respondents who belong to a membership based arbitration organisation, 80% belong to the various African branches of the Chartered Institute of Arbitrators while 42% of respondents hold multiple memberships of at least two arbitration associations within and outside the continent. This finding in my opinion shines the spotlight on the CIArb as an organisation regarding appointment of its African trained arbitrators to sit as arbitrators.
There has been widespread discourse on the fact that African practitioners are underrepresented in international arbitration. The finding from the survey confirms that 82.2% of the respondents did not sit as arbitrator in any international arbitration reference in contrast to 58% who did not sit as arbitrator in domestic arbitration. In relation to acting as counsel (or co-counsel) in international references, only 40.8% of the respondents acted in this capacity; while only 2% acted as tribunal secretary in international arbitration.
It is noteworthy that regarding the role of Africans acting as Tribunal Secretaries, no respondent acted as Tribunal Secretary in 15 or more international arbitration references over the reporting period. The role of tribunal secretary is another area with propensity for growth and increased diversity. This is because of the large numbers of young African arbitration practitioners active on the continent and who are trained and available to act as tribunal secretaries. As a young African arbitrator, this is an area I think requires a lot of nurturing especially for young African practitioners who want to penetrate international arbitration. I encourage the premier training institutions such as CIArb to conduct more of these trainings on the continent. However, training is not enough. It is my strong conviction that given the large number of trained tribunal secretaries, a policy should be enacted to involve more African practitioners especially where CIArb plays a key role in the appointment process. Younger practitioners face a lot of hurdles and it is key those institutions where they pay membership to play a leading role in providing them with opportunities to put their skills and training into practice while they prepare for more demanding roles such as arbitrator.
The main reasons given for the underrepresentation of Africans include: (1) Poor perception of African arbitration practitioners as lacking in expertise and experience; (2) Bias by appointing parties/organisations in favour of foreign counsel and arbitrator; and (3) Africans not appointing fellow Africans as arbitrators. The above reason may have been justified in the past but this is not the situation currently. The survey’s findings have clearly demonstrated that African Arbitrators hold the same qualification and skill set as their foreign counterparts. Furthermore, a good number of them have acted in various roles in domestic arbitration as evidenced by the study. There is therefore no real reason for them to not be involved more actively on the international arena.
With regard to other methods of dispute resolution, a slight majority of respondents (52.9%) have not acted as mediators while 45.5% of respondents have so acted over the reporting period (2012-2017). This finding in my opinion shows that African practitioners are involved in other forms of alternative dispute resolution outside arbitration. However, it is key to note that the numbers involved in mediation is significantly lower than the numbers involved in arbitration. Perhaps more sensitisation needs to be done regarding mediation as a method of dispute resolution. More importantly, it is my personal opinion that this is an area that younger practitioners can penetrate and gain skills with the aim of either graduating to arbitration in future or combining the two methods.
Moving forward, there are some steps that African practitioners could take to ameliorate this situation. Visibility is key in arbitration circles and they should all endeavour to participate in various international platforms. It is also important that Africans appoint fellow Africans in disputes in the various roles available. There are numerous international disputes involving Africans in one way or the other and African practitioners can tap into this as a starting point. For instance, the emergence of international arbitration centres such as the Kigali and Nairobi Centres for International Arbitration means that there is increased government commitment towards arbitration as a method of resolving disputes. Finally, new areas such as sports and investment arbitration with African parties at the centre have emerged and this is certainly an area for African practitioners to tap into and appoint their own where required.
The writer attended the SOAS conference and is a trained Adjudicator, Arbitrator and Accredited Mediator of CIArb London.
Click here to read the report.
[1] The SOAS Arbitration in Africa survey shall be conducted biennially shall continue to focus primarily on arbitration practitioners with interest in Africa - http://eprints.soas.ac.uk/25741/