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Johannesburg Arbitration Week - Day Three

The theme of the day was - THE SILK ROAD AND THE BRICS ROAD – GLOBAL RAMIFICATIONS

Session 1

FOR FURTHER DETAILS ON THE CONFERENCE CLICK HERE
THE AUSTRALIAN ARBITRATION WEEK
Will take place in the week of 9 to 13 October 2023 in Perth. The Australian Centre for International Commercial Arbitration (ACICA), together with the Chartered Institute of Arbitrators Australia (Ciarb Australia) will launch AAW2023 which attracts speakers and delegates from Australia and across the world. It enjoys the support of national and global institutions, law firms, government, business, the judiciary, and academia. Further information will be made available in due course or contact secretariat@acica.org.au.
THE 9TH ANNUAL INTERNATIONAL ARBITRATION CONFERENCE
Presented by the School of Oriental and African Studies, University of London (SOAS) will take place in Cape Town on the 11th of October 2023. The theme of this year’s conference is Arbitration Procedure with the focus on the preliminary meeting/CMC, drafting a procedural orderwitness, examination challenges, tribunal deliberations and drafting the award.
For further details and to register for the conference click here.
Watch this space for upcoming events.
The Silk Road and the BRICS Road: where does it lead?
The first session focused on AFSA’s journey to becoming an international player in arbitration. The creation of the China-Africa Joint Arbitration Centre (CAJAC) played a significant role and the current development of the BRICS initiative with AFSA broadening international horizons places Southern African arbitration firmly on the world stage.
Michael Kuper SC, in discussing AFSA’s relationship with CAJAC stated, ‘’In developing our relationship the Chinese offered a handshake from across the world, impressing us with their goodwill, efficiency, and their commitment to building the relationship between our Chinese partners and our African partners leading to growth from an international perspective.
In his opening remarks Prof David Butler, Professor Emeritus and Research Fellow, Stellenbosch University, stated, “Michael Kuper SC is the father of administered arbitration in this country and without his vision and determination AFSA would not have been in the important place that it finds itself today bringing arbitration in Africa onto the world stage.”
Lindi Nkosi-Thomas SC, AFSA Vice Chair in discussing progress with the BRICS initiative stated. ‘’The CAJAC rules are being adopted by the BRICS legal centres and are being adapted for the BRICS initiative”.
Dr Dorean Du, representing the Shanghai International Arbitration Centre, closed the session on SHIAC: the first BRICS Centre, by introducing the exploration and practices of the BRICS Shanghai International Economic and Trade Arbitration Commission which has representatives from all the BRICS countries.

Session 2

Unpacking BRICS December 2023 Resolution: from an investment and trade perspective.
The CDH session on ‘Unpacking BRICS December 2023 Resolution: from an investment and trade perspective’ moderated by Jackwell Feris, included panellists: Seamus Duggan; Leyou Tameru; Prashant Kumar; and Anil Sooklal.
The conference also discussed the trend towards greater standardisation of laws and procedures, with BRICS being a good example of how this is already playing out across Africa. The plenary session on 11 April 2024 looked at the BRICS December 2023 Resolution and its impact for investment and trade into Africa. The Declaration confirms that BRICS countries will prioritise the creation of common rules across the BRICS Dispute Resolution Network and proposes the creation of a specific institution to deal with BRICS investment disputes.

Session 3

Overcoming Obstacles in Arbitration: appointment challenges, CMC procedures, and the future role of AI in global justice.
AFSA International’s session discussing ‘Overcoming Obstacles in Arbitration: appointment challenges, CMC procedures, and the future role of AI in global justice’ moderated by Svetlana Vasileva, consisted of Bruce Collins KC speaking on the ‘Challenges to the Appointment of Arbitrators’, Dr Niels Schiersing, discussing ‘CMC and the PO1’, and Jean-Rémi de Maistre on ‘AI Powering Arbitration and Global Justice.’
Unpacking the Investment Protocal of AfCTA. Bowmans
In Bowmans’ session ‘Unpacking the Investment Protocol of AfCTA’ moderator John Kawana was joined by speakers Clement Mkiva; Dr Wilbert Kapinga; Erin Cronjé; and Leyou Tameru.
Panellist Leyou Tameru offered an insightful overview of the African Continental Free Trade Area (AfCFTA), breaking down each of the Protocols on Trade Goods, Dispute Settlement, Movement of Persons, and Investment. She highlighted that the rise in claims by investors challenging a State’s change in policy and other political decision-making could lead to fears around entrenching investor protections. Nevertheless, there are also significant obligations placed on investors regarding sustainable development and human rights issues.
Clement Mkiva went on to discuss Articles 45 and 46, which require States to appoint competent bodies to de-escalate and resolve investor disputes. While in reality, these disputes are simply passed along to the State departments for resolution, he was optimistic that the establishment of these competent bodies would allow for open paths of communication between investors and decision-makers leading to effective dispute resolution.

Session 4

Mediation: finding real solutions that bind.
During Advocates Group 621’s session ‘Mediation: finding real solutions that bind’ moderator Duncan Turner SC was joined by speakers: John Bishop; R. Santhanakrishnan; and Adv Ofentse Motlhasedi.

Session 5

But is it Constitutional?: The legality defence and arbitration.
GCB’s session, ‘But is it Constitutional? The legality defence and arbitration’ was moderated by Professor Currie and consisted of panellists: André Gautschi SC; Judge Adams; and Judge Malindi.
GCB’s second session considered the difficulties encountered by arbitrators, when faced with a defence premised on the principle of legality. Panel members recognised that this topic had a uniquely South African flavour, with at least two decisions of the Courts stating that an arbitrator may not competently determine such questions. This appears to conflict with the international approach. The moderator for this session was Professor Currie, a member of the Johannesburg Society of Advocates and co-author of inter alia the Bill of Rights Handbook. The panel was constituted of the Honourable Judges Gcina Malindi and Lester Adams. The third panel member was André Gautschi SC. The session commenced with an insightful presentation by the moderator who conveyed masterfully that the law was by no means settled and the prevailing thought that an arbitrator is bound by case authority not to enquire into the merits of a defence premised on the principle of legality may incorrectly reflect the domestic position in South Africa. This presentation was cause for a lively discussion. It was interesting to observe delegates from various jurisdictions sharing how each of these jurisdictions were grappling with similar issues. The second session closed with brief remarks from Myron Dewrance SC, the Chairperson of the GCBSA.

Session 6

Who Won, Man or Machine? Election results and announcement: Young AFSA
In the last session of the day Young AFSA, represented by Kirsti Wolmarans and Jonathan Barnes announced the election results of the Man or Machine vote.

MOOT Winning Team

The eagerly awaited announce- ment of the Moot Winning Team was made by Adv Partick Lane Vice Chair of AFSA and Chairman of AFSA International Division. The three competing Moot teams were the Young AFSA team, the SADC team, and the Advocates for Transformation (AFT) team. The winner was the Advocates for Transformation (AFT) team which included:
  • Buhle Lekokotla
  • Kameel Premhid
  • Sechaba Mohapi
  • Keitumetse Mashishi
  • Zusiphe Nako
  • Thabang Mathopo
AFSA warmly congratulates the members of the AFT team and sincerely thanks the members of the Young AFSA and SADC teams for the excellent quality of their presentations.

CAJAC Partners

Attend Jaw And Cajac Guiding Committee

Five CAJAC delegations representing all the CAJAC partners, travelled to South Africa to attend the Johannes- burg Arbitration Week. Three of the CAJAC partners came from China, representing the Shanghai International Arbitration Centre (SHIAC), The Beijing International Arbitration Centre (BIAC) and the Shenzhen International Court of Arbitration (SCIA). The two CAJAC delegations from Africa came from the Nairobi International Arbitration Centre (NCIA) and from OHADA.
On Wednesday afternoon 10 April the CAJAC partners met at AFSA to attend a meeting of the CAJAC Guiding Committee. The meeting was chaired by Michael Kuper SC the rotating chair of CAJAC for 2023/24.
Matters on the agenda included progress and developments over the past year and the development of a shared CAJAC website. Following the recent acceptance of a common set of CAJAC Rules and an agreed Constitution, plans for the marketing of CAJAC in the different regions of China and Africa, were discussed.
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