Influence of Negative Perception by Users on the Growth of African Arbitration
On 31 March 2016 I moderated a half day conference on the topic “The urgency of Greater Participation by African Stakeholders in Arbitrations involving African Interests”, hosted by Shearman and Sterling LLP (with the ICC YAF) at their London offices.
One phrase which was repeated more than others was the negative “perception of (international) users of arbitration” on arbitrating in Africa. Such negative perception impacts on the appointment of African arbitrators, reference to arbitration institutions in Africa, and generally seating international arbitration references in African countries. Examples of different ‘myths’ about the continent along with some (pleasant and not so pleasant) experiences were discussed. Examples include physical (in)security, interruptible power supply, and poor internet connections. I noted that physical insecurity is a global problem which does not stop people going to countries in other continents. Furthermore countries within the continent also have 5 star hotels which provide comparable services as in any other country. Finally, the major arbitration institutions in the continent also provide services of international standard. However when an individual has had one bad experience in one African country, they presume that the same obtains in other African countries. Evidently this is not true. Interestingly when individuals have a good experience in one African country, they do not appear to shout out about the experience and expect the same in other African countries. One tip to changing negative perceptions is for individuals to speak about their positive experiences from the continent.
Any discussion on Africa must start with a clear recognition that there are 54 different countries in Africa. Each country is very different from the others and all of the countries are at different developmental stages. Some African countries have thriving and stable political environments and others do not, while some are post-conflict states. Some countries have large economies in comparison with other countries in the continent, while others do not. Some have large populations of educated people and a vibrant legal culture, others do not. Most have historical and cultural connections or ties to other regions of the world which positively impact on their economies while for others the impact of such relationships may not be so positive. Some have large deposits of extractive minerals and commodities relevant to the world economy while others do not. Some are bounded by great natural beauties with thriving tourism industries while others are not; and finally some are strategically located and take advantage of some trading routes and corridors. With such variety it is difficult for Africans to understand why non-Africans think and treat the continent as one giant country, as though its peoples are all the same or very homogenous. This pluralistic nature of the peoples of Africa extends to the laws, politics, courts, and ideologies of various African countries.
For international arbitration users, it is understandable if businesses do not wish to risk their dispute by choosing to arbitrate such disputes in an African jurisdiction. This is fair where the dispute has no connection with Africa. It is however not defensible if the dispute is connected to an African country. So for example why will a business exploit the resources in an African country, repatriate the proceeds and arbitrate any eventuating dispute in Europe or elsewhere as long as it is not in Africa? That in itself is another form of exploitation.
There are now major arbitration institutions in various regions of the continent. These institutions provide first class professional services for the administration of disputes connected to Africa. They have modern arbitration rules supported by modern arbitration laws and robust judiciaries in the states they are located. Examples are: Kigali, Mauritius, Cairo and Lagos.
I also recognise that for these venues to thrive and continue to grow, African governments and businesses must use their services. In my opinion, it is for African arbitration users to refer their disputes to the arbitration rules of these centres. It is not for the centres to wait on European and American businesses to refer their disputes to them for resolution. These businesses simply will not do it, at least not yet. They (and their advisors) do not yet have confidence in the sophistication of these centres and the services they render. In addition, these centres may not be resourced enough to compete for work with the likes of the ICC, LCIA or Swiss Centres. They are however well placed to administer disputes arising from the continent and their services should be utilised by African businesses and governments. There is a growing call for Africans to use “made in Africa” arbitration services. My view remains that this is the way forward to creating an African international arbitration brand for dispute resolution services within the continent.- By Dr Emilia Onyema -
Associate Dean, Learning & Teaching
Faculty of Law & Social Sciences