ARBITRATION IN AFRICA SURVEY REPORT - DRAFT BLOG POST FOR IARB
On 2nd May 2018, results from the SOAS and Broderick Bozimo & Company (BBaC) Arbitration in Africa Survey 2018 were presented at SOAS’ Arbitration in Africa Conference in Kigali. The survey focused on the issue of ethnic diversity on arbitral tribunals. We asked African arbitration practitioners for their experience, practice and thoughts on arbitration and the extent of their participation in international and domestic arbitration. We received 191 responses to the survey between December 2017 and February 2018, with respondents from 19 African jurisdictions and 13 jurisdictions outside Africa.
Arbitration has long been the accepted global mechanism for binding dispute resolution outside the framework of national courts. The African Continent is no exception. Domestic and cross-border disputes emanating from Africa in on the rise. However, available statistics suggests that there is no corresponding increase in the number of African arbitrators or counsel acting in international arbitration references. The 2018 survey interrogates this illogical disconnect.
Results from the study confirm that African practitioners are significantly underrepresented on arbitral tribunals. An overwhelming 82.2% of respondents said that they did not sit as arbitrator in international arbitration during the reporting period (2012 to 2017). The survey also confirms that diversity issues exist in domestic arbitration on the continent. A surprising 58% of respondents said that they did not sit as arbitrator in domestic arbitration during the reporting period. The data, therefore, suggests that a select pool of arbitrators have a disproportionate share of the domestic market – particularly because 85.3% of respondents believe that domestic arbitration is growing in their jurisdiction.
There is strong support for Arbitration in Africa. Over half of the respondents (55%) believed that their jurisdictions have effective arbitration laws. 55.7% of respondents also believed there was effective judicial support for arbitration in their jurisdiction.
As regards the qualification and expertise of African practitioners, the clear message is that there is an available pool of qualified candidates on the African continent. 81.7% of respondents had received formal training in arbitration law and practice. In domestic arbitration, over the reporting period, 42.4% of the respondents had acted as counsel in 1-5 arbitrations; 12% acted as counsel in 6-10 arbitrations; and approximately 10% acted as counsel in over 15 disputes.
The results show a similar trend in international arbitration. Over the reporting period, 31.4% of respondents acted as counsel in one to five disputes, 4.2% in six to ten disputes, 1% in 11 to 15 disputes, and 4.2% in 15 or more disputes.
Of concern, however is the geographical spread of these qualified candidates. The majority of respondents were qualified to practice in either Nigeria (61.8%), South Africa (8.9%), Ghana (4.2%), Kenya (2.6%) and Ethiopia (2.1%). This highlights the need for stronger regional cooperation across the African continent, to facilitate the increase of qualitative skills.
Other findings from the survey included the following:
- 74% of the respondents believe they do not adequately participate in international arbitration.
- The top three reasons for underrepresentation of African arbitrators in international arbitration were stated as:
- Poor perception of African arbitration practitioners (by their foreign colleagues) as lacking in expertise and experience.
- Bias by appointors in favour of foreign counsel and arbitrator.
- Africans not appointing fellow Africans as arbitrators.
- Over the reporting period, 22.5% of respondents acted as tribunal secretary in domestic arbitration disputes against 7.9% that acted as tribunal secretary in international arbitration.
- In addition to arbitration, 45.5% of the respondents have acted as mediator. 32.1% of these have mediated six or more disputes while 64.4% have mediated between one and five disputes.
- 74.3% of respondents have their profiles or CVs available on their firm’s website and other professional online media platforms.
The full report can be accessed here.
Broderick Bozimo & Company