Insight Articles

The matter of the heavenly twins, and in particular the impact and reception of the award by the ChatGPT logical model, reminded the conference of the winds of change. It contextualized the large language model KPMG demonstrated at its table in the reception area and, also, the other session in breakout, moderated by Déan Friedman and Rupesh Vashist, of KPMG, considering with the audience how the convergence of physical space and virtual space, enabled by virtual reality, augmented reality and mixed reality, and accessed via computers, may in future change the way we look at disputes and the resolution thereof. We would be remiss not to refer to a comment Patrick Lane SC made during that session, to the effect that the rules and manner of resolving disputes when done by computer and artificial intelligence in different conceptual space may not be cognisant of the values and rules followed by humans in the universe.

In their second session, Allen & Overy shifted focus to the evolution of investment protection within the Southern African Development Community (SADC). Michelle Porter- Wright skilfully moderated a forward-looking discussion with luminaries such as Prof. Lise Bosman, Mmiselo Qumba, Ambassador Xolelwa Mlumbi-Peter, and Svetlana Vasileva. The panellists offered a critical analysis of current investment treaties and the impact of recent policy changes on investor confidence.

The conversation explored the balance between investor rights and the sovereign right of states to regulate in the public interest. The panel provided thought-provoking perspectives on the need for reform in investment treaty frameworks to better reflect the sustainable development goals of the SADC region. The session concluded with a consensus on the importance of regional collaboration to foster an environment conducive to both investment protection and socio-economic development.

The panel International Treaty Arbitration: ISDS and associated reforms, from a continental perspective, debated the need for substantive and procedural reforms to the ISDS system. Some panellists argued that reform should focus on substantive investment law, which should include greater protections and regulatory carve-outs for states. Some of the substantive protections in the AfCFTA Investment Protocol were highlighted as examples of provisions that could lead to gradual but meaningful reform, including specific investor obligations and the many references to sustainable development. It was also noted, however, that a core problem is the fundamental mismatch between the needs and characteristics of investor state disputes and the procedural model we have chosen to impose on their resolution.

Toby Landau KC believes that the depoliticised model we have chosen for investor-state disputes, which was originally intended to take disputes away from diplomatic protection and politics, is no longer appropriate considering the much broader range of disputes being heard by investor-state tribunals. The inclusion of substantive provisions in the AfCFTA Investment Protocol is a major step forward in balancing investor and state rights. What matters now is developing a robust and sufficiently tailored dispute resolution annex to the Protocol on Investment, that meets the needs of the parties involved in African trade and investment.

The participants considered this evolving international landscape in their break-away session on 10 April 2024. They considered if Africa can offer the ingredients for a successful international arbitration. On a continent of 54 countries with diverse legal systems rooted in customary African, Islamic and European law, approaches between different African jurisdictions to international dispute resolution can be inconsistent and incompatible. However while acknowledging such divergence, it was affirmed that many “established” arbitral jurisdictions like South Africa, Kenya and Mauritius are well-placed to host international arbitrations with up-to-date laws and an experienced arbitration-friendly judiciary.

The session included particular insights about the readiness and experience of Africa’s arbitral centres with modern rules and the accessibility of top-class facilities. The session also considered Africa’s ability to mobilise technology to improve training, efficiency and procedures, alongside a call to ensure that the growth of technology, AI and African data is properly promoted and incorporated into AI systems.

Déan Friedman from KPMG moderated a panel comprising Louise Jordaan from Stoneturn, Susan Breytenbach from EY and KPMG’s Huns Biltoo commenting across the expertise of, expert evidence by, and feasibility of chartered accountants as arbitrators. Not only did this panel provide insights into the exceptional vocational ability and experience of chartered accountants relevant to commercial disputes, but they also made practical references to the ability of chartered accountants to, for instance, positively influence the construction of arbitration clauses to provide effectively for financial concepts, and survive the effect of time efflux in the ever-changing commercial world. In particular, this panel not only highlighted the versatility of chartered accountants, but also reflected on their ability to act as arbitrators, particularly the need to step into that role. The panel concluded that, in appropriate cases, chartered accountants may be appropriate to arbitrate a commercial dispute. This perhaps deserves further discussion.

The first of these sessions discussed whether arbitrations may facilitate corruption. The moderator for this topic was Pule Seleka SC, former Chairperson of the Johannesburg Society of Advocates. The panel consisted of Advocate Chohan SC and Advocate Engebrecht SC from the Johannesburg Bar.

Advocate P G Cilliers SC, the current Chairperson of the Pretoria Bar was the third panellist. The panel deliberated on the appropriate stance to be adopted by an arbitrator, when corruption is raised, focusing on an arbitrator’s ability to entertain such issue. Discussions ranged from whether the defence of corruption was triable in arbitrations, and considered the so-called “separability principle” under the South African International Arbitration Act as against the domestic approach set out in cases such as North West Provincial Government v Tswaing Consulting decision. There was also a discussion about the implications of the recent English decision in Federal Republic of Nigeria v The P & ID, which calls for arbitrators to adopt a more interventionist approach in such cases, and how this is to be reconciled with an arbitrator’s duty to remain impartial.