- CAJAC
- SADC Alliance
- BRICS
Authored by the Young AFSA Knowledge Committee
The foremost question in any arbitration is whether a valid agreement to arbitrate exists. This issue remains subject to varying interpretations across jurisdictions. Some practitioners argue that specific essentialia must be present, while others maintain that mutual agreement to arbitrate is sufficient.
In the South African context, Jonathan Ripley-Evans noted that while this debate continues, he believes that the existence of an agreement alone is adequate to support arbitration. Echoing this, Mabvuto Sakala emphasised that in Zambia, party consent is the key requirement, with legislation stepping in to address procedural gaps.
Where agreements are concluded orally, evidentiary challenges may arise. The speakers discussed how such agreements are treated in their jurisdictions and under what circumstances oral arbitration clauses might fall outside the scope of arbitration legislation but still be upheld.
Even when a valid arbitration agreement exists, ambiguity in drafting can give rise to unnecessary disputes. Clearly specifying procedural aspects from the outset fosters certainty and avoids costly preliminary litigation.
Institutions often provide model arbitration clauses to guide parties in this respect. These clauses are typically concise to reduce the risk of confusion. According to Jonathan Ripley-Evans, there are three key procedural elements every arbitration clause should include:
Leyou illustrated how poorly drafted clauses can lead to significant complications. A common but avoidable error is the incorrect naming of the arbitral institution – a mistake that can be easily sidestepped by using institutional model clauses. Careful attention to drafting, she noted, lays the foundation for efficient proceedings.
One of the most critical procedural choices is the seat of arbitration, which determines the legal framework governing the arbitration. As Leyou Tameru put it, the seat gives the arbitration its “nationality—you’re picking a citizenship.”
A seat in a jurisdiction with modern arbitration laws can enhance the international enforceability of an award. Chandni Gopal explained the important distinction between the seat and the venue of arbitration, clarifying the practical implications of each.
The speakers also delved into arbitrations involving states or state-owned entities, highlighting the procedural hurdles and legal nuances that these cases present. Mabvuto explained that engaging the state in arbitration, and enforcing an award against it, often requires navigating additional layers of procedure.
In Ethiopia, Leyou noted, disputes involving state entities can raise the issue of arbitrability. Certain contracts may be classified as “administrative contracts”, which are not subject to arbitration under domestic law. She shared how practitioners work around these restrictions, and the panellists offered further practical insights into managing disputes involving sovereign actors.
This article captures only a fraction of the insights shared during the webinar. The discussion also covered topics such as:
To explore these topics in full, access the recording of the webinar on Young AFSA’s website.
Young AFSA remains committed to knowledge sharing and capacity-building across the continent and has more events, webinars and resources in store.