Insight Articles

During the AFSA-SADC Alliance: a regional game changer, Programme Director Paulman Chungu introduced Part 1 and 2 of the first plenary session focused on Objectives, Purpose, and Expectations of the AFSA-SADC Charter. The session included an impressive line-up of speakers: Michael Kuper SC – Chairman of AFSA and CAJAC; Mr Flavio Menete – President of the SADC Lawyers’ Association; Honourable Titus Mvalo – Malawi Minister of Justice; Hon. Nobert Mazungunye – Zimbabwe Deputy Minister of Justice; and Hon. John Jeffery – SA Deputy Minister of Justice and Constitutional Development. All of the speakers shared their impassioned support for the signing of the charter with Michael Kuper SC – Chairman of AFSA and CAJAC stating, “The signing of the AFSA-SADC Alliance will transform arbitration practice in the 16 member states of SADC and will have a huge effect on the way our Alliance members will practise arbitration – it is one of the biggest arbitration initiatives in the international field of arbitration when taking into account that the population of SADC is larger than the population of the USA.”

Part 3 of the session focused on “Securing the Charter Objectives” with speakers that included: Des Williams – Chairman of AFSA-SADC Division; Patrick Lane SC – Chairman of AFSA International; Stanley Nyamanhindi – CEO of AFSA-SADC Division; and Prof Lise Bosman.

Erin Warmington moderated a session which focused on the African Continental Free Trade Area (AfCFTA) and the role of dispute resolution in African trade and investment. Panellists Johann Human and Meluleki Nzimande discussed the current framework of AfCFTA and the Dispute Settlement Protocol, which makes provision for the resolution of state state disputes. However, they argued that it is critical to extend dispute resolution mechanisms to other role players, including investors and civil society. This is critically important in the context of the recently adopted Protocol on Investment. Vlad Movshovich further pointed out that new mechanisms of dispute resolution will need to be developed as the current mechanisms were designed to resolve state state disputes and include, for example, the withdrawal of concessions, compensation, and other trade measures. Judge David Unterhalter agreed, noting that the remedies need to be relevant to the types of disputes likely to arise under the Investment Protocol.

Panel members emphasised that while investor-state dispute settlement or ISDS mechanisms have been widely criticised, there is a degree of optimism that the substantive provisions of the Investment Protocol are radically different from the bilateral treaties of the past. Investor protections are balanced against internal limitations (aimed, for example, at protecting labour rights, the developmental state, the environment and the public interest more generally), state party rights, investor responsibilities and the possibility of counterclaims, and for this reason, ISDS under AfCFTA could provide for fair, inclusive and effective dispute resolution.

In the discussion on the “Africanisation of Arbitration”, moderated by Jonathan Barnes, panellist Jawaid Babamia commented that, while it was the case, historically, that South African disputes, governed by South African law, were being adjudicated overseas with South African lawyers playing a fairly limited role, he has witnessed significant changes in recent years. As there has been a steady increase in the number of international arbitrations involving parties from sub-Saharan Africa, so our arbitration institutions have had the opportunity to establish a reputation for excellent services with first-class arbitrators and this has naturally spurred on the Africanisation of arbitration.

In order to make African arbitration attractive, the context on the African continent itself must be attractive as a place renowned for having seats and venues that support and are appropriate for arbitrations. This is achieved where Government, the Judiciary, legal practitioners and arbitration centres work together with a common goal.

The essence of Africanisation is inclusiveness. There has been huge growth in recent years in the number of African arbitration practitioners, arbitrators and arbitral institutions.

In Kenya, for instance, the government has made efforts to promote the Nairobi Centre for International Arbitration (NCIA) by mandating that the NCIA is the arbitral body in all government contracts. On the other hand, in Nigeria, a number of arbitrations arising from Nigerian projects are still instituted outside Nigeria, notwithstanding access to competent local arbitration practitioners. Africanisation can only be achieved by deliberate policies which are centred on making African jurisdictions arbitration friendly.

In order to enhance the credibility of African arbitrations, we need to showcase our competence in complex disputes and, with equal rigour, tell the story of our achievements. This will showcase best practices in African arbitrations and the positive results which may be achieved cost-effectively.

A&O Shearman’s (Allen & Overy at the time) first panel discussion looked at the intricacies of enforcement within the African legal landscape. Moderated by Wihan Meintjes, the session featured insights from esteemed colleagues Gerhard Rudolph and Yacine Francis, alongside the expertise of Abdul Jinadu and Dan Tivadar. The panellists delved into the multifaceted challenges faced when enforcing arbitral and adjudication awards in Africa, highlighting the importance of maintaining the integrity of arbitral proceedings for successful enforcement, practical considerations for enforcement against African states and other issues that may arise from diversity of legal systems and the varying degrees of adherence to international arbitration conventions across the continent.

Strategies for successful enforcement were thoroughly examined, with an emphasis on understanding local legal nuances and the importance of engaging with local counsel and plotting enforcement strategies from early on. Practical considerations, such as the political and economic climate of enforcement jurisdictions, were also discussed, providing attendees with a comprehensive understanding of the complexities involved. The session underscored the necessity for a tailored approach to each enforcement scenario, considering the unique context of the African jurisdictions involved.

Following the arguments by the 3 teams the matter was also adjudicated utilising Artificial Intelligence (AI), the process expertly provided by the University of Pretoria. Delegates were then presented with two arbitration awards, one produced by the panel of arbitrators and one by AI. Delegates were asked to cast their votes as to whether ”Man” or “Machine” delivered the best result without knowing which was which. The majority found it challenging to decisively choose a winner, acknowledging that either award could have been deemed the best. When asked if considerations of speed and costs override the human touch in arbitration there was general consensus that speed and cost-efficiency should not overshadow the value of the human touch in arbitration.