- CAJAC
- SADC Alliance
- BRICS
On 23 October 2025, Young AFSA hosted its final training webinar for the year, focused on the very basics of arbitration, titled “Arbitration 101”. Reflective of the international nature of arbitration, the panel comprised of speakers from around the African diaspora: from Johannesburg, South Africa, Advocate Khotso Boshomane (Island Group of Advocates, Johannesburg); from Lusaka, Zambia, Valerie Kawangu Chiyombe (Fellow of the Chartered Institute of Arbitrators); and from Lagos, Nigeria, Mitchell Aghatise (Olaniwun Ajayi LP). Moderating the discussion was Young AFSA’s Steven Darge (Pinsent Masons).
This key question commenced the evening’s discussion. Adv Boshomane noted that it all starts with the role arbitration takes alongside ordinary court proceedings. As an elective mechanism to resolve legal disputes, it is designed to be speedy, efficient and effective, with the parties having some discretion and power over the process, including the choice of person to hear and decide the dispute – the arbitrator – and the rules applicable to the proceedings themselves. However, it still follows the general path that ordinary litigation takes: the hearing of both parties’ grievances and the arrival at an enforceable ruling given by the presiding officer.
Adv Boshomane remarked how arbitration cannot be compared to mediation because of fundamental differences in the respective processes. In mediation, a neutral third-party tries to guide the disputing parties to a mutual settlement, usually in an informal manner, with any agreement between them being voluntarily made. In an arbitration, a neutral third-party does not assist the parties in any manner, leaving it up to them to convince that third-party that the merits of their case are stronger than the other party’s, with the result being a binding award capable of being enforced by a court. Both Aghatise and Kawangu Chiyombe noted that arbitration is gaining impressive momentum in Nigeria and Zambia respectively, with both countries having clear and specific legislation that sets out the applicable processes and procedures that apply to arbitrations in those countries.
Aghatise took the audience on a whistle-stop tour of the several forms that arbitration can take, including in the employment realm, the commercial sphere (including construction and mining contracts), expedited arbitral proceedings, arbitration on the sports field and, vitally, international arbitrations. He noted that international arbitration is a growing field of practice, with the subject matter spanning a huge variety of projects and disputes, including arbitrations between sovereign countries. In the Nigerian context, Aghatise said he found arbitration being used most in the commercial sector. Adv Boshomane and Kawangu Chiyombe agreed, saying the construction and mining spheres were where most arbitrations were taking place in South Africa and Zambia respectively.
On the point of arbitration being widely adopted as the preferred method of dispute resolution in the construction and mining industries, Aghatise believed that it was due to one reason more than any other: the ability to choose an expert to decide your dispute who has actual knowledge or even experience of the topic at hand, from both a legal and technical perspective. This, he said, was where arbitration had an edge over typical litigation, with court judges (who the parties generally cannot choose) not necessarily having the in-depth knowledge of the nuances of technically complex construction and mining disputes.
Kawangu Chiyombe took a step back to how arbitration proceedings are birthed: the arbitration agreement between the parties. She noted that having a concrete agreement with all the necessary detail, including who will act as the arbitrator, where the arbitral hearing will take place, what rules will be used and even the language of the arbitration, was absolutely vital in ensuring that the proceedings take place smoothly and without too much interruption. Despite this, however, the parties may still find themselves before a court judge to deal with technical issues surrounding the arbitration agreement, such as what happens when the selected arbitrator is not available or one party decides not to participate in the arbitration. Kawangu Chiyombe noted that arbitration agreements remain contracts between parties, and they are enforceable as such, with courts in several African jurisdictions hesitant to interfere in the parties’ voluntary choice to resolve any future disputes by arbitration as set out in those contracts.
That said, it was notable that the courts remained a fall-back option in case the arbitration agreement was not workable in some manner, as well as the parties having the power to change the agreement if it is necessary and if they agree, providing some comfort to the parties that what they agreed initially was still capable of being changed with consent.
Adv Boshomane weighed in on the point of court interference, saying that South African courts took a similar approach and would enforce arbitration agreements where there is no reason not to do so. This reflects the generally accepted principle that contracts will respect party autonomy, so that contracts freely entered into by parties, including arbitration agreements, are sacrosanct and will normally only be set aside on the basis of public policy considerations.
All the speakers contributed to dealing with this wide issue. Adv Boshomane explained that the genesis of any arbitration is the existence of a dispute between the parties, with the general commercial approach being adopted that dispute resolution is a “last stop”, because of the legal costs and additional time that the parties would need to spend to prepare their respective cases. Once there is a dispute, the parties will need to refer to the rules they initially agreed would regulate how their dispute is resolved and refer the dispute for administration by an arbitral body, such as AFSA, the Lagos Court of Arbitration or the Nigerian Institute of Chartered Arbitrators. Thereafter, the proceedings would generally take a course similar to court proceedings, depending on the rules agreed.
Aghatise discussed the matter of rules, informing the audience how widely they can differ but how they will always adopt the key legal principle of allowing both sides to have their cases heard. He cautioned against amending the applicable rules unless the parties were absolutely sure that the amended rules are workable, failing which parties might well find themselves having to approach the arbitrator to deal with procedural issues. Aghatise noted that local and international administrative bodies have various sets of rules, meaning that parties are spoiled for choice because of the solidity and efficiency of those rules.
On the matter of international arbitration and how it is regulated, Kawangu Chiyombe remarked that the basis for most recent national arbitration legislation is the New York Convention on Arbitration and the UN Commission on International Trade Law (UNCITRAL)’s Model Law. Both of these could also be applied to international arbitrations, with the New York Convention applying specifically to the issue of how international arbitration awards are enforced in-country across the world. She noted that where national legislation conflicts with the Convention or the Model Law, it was up to the country at hand to deal with the issue in their own legislation.
Taking questions from the audience and wrapping up the session, all the speakers noted that what makes arbitration attractive remains its flexibility, speed and efficiency. Disputing parties ought to use arbitration more often because they are able to adapt processes to suit their particular disputes, whereas ordinary court litigation is rigid and often prolonged because of the burden upon the courts in South Africa, Zambia and Nigeria. As the discussion covered only the very basics of the concept of arbitration, the panellists remarked that the learning process is endless and niches exist for everyone.