- CAJAC
- SADC Alliance
- BRICS
Thlakodiso Raselabe – LLB Graduate of the University of Limpopo
Africa continues to export a large proportion of its high-value commercial disputes to foreign seats. The paradox is striking: arbitral centres are growing and legislative frameworks are modernising yet disputes arising from African energy, mining, construction, and telecommunications projects are frequently seated in Paris, London, Geneva, and Singapore. ICC Dispute Resolution Statistics indicate that while African parties appear with increasing frequency in ICC cases, African seats and African arbitrators are less frequently appointed.
A commonly cited explanation is that foreign institutions offer more predictable case management, established procedural practices, and more experienced arbitrator panels. As ALN partner Aisha Abdallah notes, “[t]here is a political desire to repatriate disputes to Africa and ensure that, at least between African parties, they can agree to house their dispute in a neutral seat within the continent.”1 However, this political and institutional ambition has not yet fully translated into consistent user confidence.
This article explores why Africa continues to export arbitration despite ongoing reform efforts. It argues that specialised arbitral capacity – including experience in managing, arguing and arbitrating complex disputes – is the decisive ingredient for improved credibility; the absence of which is a core obstacle to the development of stronger arbitral seats in Africa.
To understand this capacity gap, it is necessary to clarify what “specialisation” means in arbitration. A specialised arbitrator or counsel is not simply a seasoned lawyer. Rather, effective arbitral capacity requires a unique combination of expertise.
In particular, sector expertise in the areas of, for example, projects and construction, oil and gas operations, mining, and financial instruments, is crucial to ensuring that technical factual matrices are fully understood. Further, counsel and arbitrators must have sufficient knowledge of the particular procedural rules and norms unique to arbitration, especially as compared with litigation. Familiarity with local and international procedures, guidelines and cross-border legal dynamics are crucial in this respect. The transplanting of litigation procedures into arbitral proceedings without adaption strips arbitration of its unique procedural benefits (such as targeted disclosure and streamlined procedures).
In South Africa, a persistent weakness is the assumption that general legal experience is sufficient to act as an arbitrator. This misconception undermines legitimacy. Without the convergence of sector knowledge and arbitration-specific procedural fluency, the quality of awards suffers and procedural challenges multiply.
The recent ICC Dispute Resolution Statistics: 2024 report confirms that African arbitrators remain under-appointed in certain high-value and technically complex disputes, signalling a perception that African centres lack pools of sufficiently specialised practitioners.2
This dynamic provokes stagnation: without specialised arbitrators, complex cases are exported to foreign seats and decision-makers; and because complex cases are exported, arbitrators and counsel are denied opportunities to build specialisation. Breaking this cycle is crucial.
It is also important to distinguish between the seat of arbitration and the physical venue of hearings. The seat is not merely a geographical location; it determines the legal framework of the arbitration (the lex arbitrii) and the courts with supervisory jurisdiction.
Parties’ choice of seat is therefore influenced by considerations such as legal certainty, judicial support, and enforcement reliability, in addition to perceptions of arbitrator experience and institutional quality. This concern warrants an analysis of several key judgments in Africa’s arbitration jurisprudence
The Lufuno judgment is widely regarded as a constitutional affirmation of party autonomy in arbitration. The Constitutional Court emphasised the legitimacy of arbitration as a private dispute resolution mechanism and confirmed the limited scope for judicial intervention.
Although the case involved a dispute with technical elements and dissatisfaction with the arbitral outcome, it should be interpreted cautiously. The judgment does not turn on a lack of technical specialisation, but it does illustrate how concerns about arbitral process, whether procedural or substantive, can lead to attempts to challenge awards before domestic courts.
Although the Constitutional Court ultimately upheld the award, the case reveals a deeper structural reality: insufficient technical specialisation invites procedural complaints, encourages judicial intervention, prolongs timelines, and undermines trust in domestic arbitration.
Nigeria provides an example of high-value disputes being resolved outside the jurisdiction. Disputes in former decades involving major petroleum actors have often been administered under the rules of institutions such as the LCIA, ICC, or ICSID.
This trend typically results from a combination of factors, including perceived neutrality, established institutional track records, and confidence in enforcement regimes. Concerns regarding consistency in arbitral practice and sector familiarity should be understood as part of a broader set of considerations rather than the sole determining factor. The Nigerian experience illustrates that even a busy arbitral jurisdiction can lose traction when specialised capacity faulters.
Despite these challenges, Africa is not static. Several developments signal a continent deliberately building the specialisation it historically lacked:
These developments suggest meaningful progress, along the trajectory of deepening expertise and institutional maturity. However, without targeted investment in specialised training, exposure and institutional credibility, momentum will slow.
Africa’s arbitration landscape has developed substantially, yet the continent remains a net exporter of complex commercial disputes. This reflects a combination of factors, including institutional track record, enforcement considerations, party preference, and perceptions of arbitral experience.
Repatriating disputes to African seats requires more than legislative reform or new institutions. It requires cultivating a generation of arbitrators and counsel with deep technical grounding in the industries that drive African commerce as well as in the unique procedural rules that govern the disputes arising from their industries. Without this specialisation, Africa’s arbitration renaissance will slow.
This will require sustained efforts in training, mentorship, and practical exposure, including greater participation of local arbitrators in international tribunals. Over time, such measures may contribute to a more balanced distribution of arbitral work and a stronger role for African institutions in resolving disputes arising from the continent’s growing commercial activity.