Transcript 9.-JMilesCo_ALN-Annual-Conference_22Nov13

Trends in dispute
resolution in Africa
Legal systems in Africa
1.
Civil law
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2.
Common law
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3.
Kenya, Uganda, Tanzania
Roman Dutch law
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4.
Equatorial Guinea, Benin, Chad, Niger, Mozambique, Angola, Guinea
Bissau, DRC
South Africa, Zambia, Botswana, Zimbabwe
Sharia/Islamic law
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Egypt and parts of Nigeria
Court systems in Africa
1.
Issues
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2.
Corruption
Delays
Alternative ways of resolving disputes – arbitration and others
Alternative dispute resolution (ADR)
1.
Arbitration - domestic and international
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2.
Mediation
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3.
Only ADR process that is binding, unless parties reach settlement using
another ADR process
Non-binding, impartial third party to assist parties to articulate own interests
Conciliation
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Similar to mediation: conciliator heads the negotiations, proposes settlement
terms and directs parties towards an agreement
Why arbitrate?
1.
Neutrality, impartiality and independence
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2.
Flexibility
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3.
Not subject to appeal
Delays
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6.
Not public like many court proceedings
Final and binding award
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5.
Constitution of the arbitration tribunal, language, venue, and procedural rules
Confidentiality
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4.
Can avoid disadvantages associated with African court sytems
Generally quicker than court proceedings, particularly post-award
Ease of enforcement of award
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New York Convention
Enforcement in Africa (1)
New York Convention
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Award enforcement proceedings involve the consideration of local legislation (Arbitration Acts).
A party seeking to enforce an award in a NY Convention country needs to make an application
to the national court for recognition and enforcement.
Grounds for refusal to enforce a foreign award (Article V):
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A party was under some incapacity or the agreement was invalid;
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A party was not given proper notice of appointment of arbitrator or of proceedings;
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Award deals with a difference or contains a decision on matters not contemplated/falling
within terms of submission to arbitration, or contains decisions on matters beyond the
scope of submission to arbitration;
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Composition of arbitral tribunal or procedure not in accordance with agreement of parties,
or, if no agreement, not in accordance of law of country where arbitration took place;
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Award is not yet binding or has been set aside or suspended by a competent authority;
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Difference was not capable of settlement by arbitration; or
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Public policy considerations.
Enforcement in Africa (2)
New York Convention African countries
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Over 30 countries are member states, including South Africa, Egypt, Nigeria,
Algeria, Morocco, Mauritius, Tunisia, Kenya, Uganda, Tanzania
Case study – Kenya
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Implemented NY Convention into its national law.
Arbitration Act 1995 – section 36 (2) – award to be recognised as binding and enforced in
accordance with the provisions of the NY Convention, or any other applicable conventions.
Section 36 (3) – requirements for making an application for enforcement of award.
Section 37 – grounds for refusal (similar to those in the NY Convention) :
• Party to arbitration agreement was under some incapacity;
• Arbitration agreement is invalid; or
• Party was not given proper notice of appointment of arbitrator or of proceedings;
Enforcement in Africa (3)
• Case study – Kenya (cont’d)
• Arbitral award deals with dispute or contains decision on matters not within
contemplation of/falling within terms of arbitration;
• Composition of arbitral tribunal or procedure not in accordance with agreement of
parties or with the law of the state where arbitration tool place;
• Arbitral award not yet become binding or has been set aside;
• Arbitral award was induced or affected by fraud, bribery, corruption or undue
influence;
• If the subject matter of the dispute is not capable of settlement by arbitration
under Kenyan Law; and
• Recognition or enforcement of award would be contrary to the public policy of
Kenya.
Enforcement in Africa (4)
Non - New York Convention African countries
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Including Angola, Chad, Ethiopia, Libya, Namibia.
Consult national legislation of the country where you want to enforce the award
and local lawyers.
Other regional conventions – Riyadh Convention
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Member states include some African countries – e.g. Algeria, Djibouti, Sudan,
Somalia, Libya.
Challenges to enforcement – three examples
1.
Public policy
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2.
Domestic public policy varies between states
State immunity
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Jurisdictional immunity, or immunity from suit – if the state, or state entity has
agreed to submit a dispute to arbitration, this should not be a problem
BUT immunity from recognition/enforcement and execution of an award can be a
difficult issue - where the award debtor is a state or state entity, state immunity
might block enforcement
Establish what doctrine of state immunity is applied in the country of enforcement
Example - Kenya
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3.
Government Proceedings Act
Misconduct
Future of arbitration in Africa
1.
2.
3.
New African arbitration centres
Growth of FDI and regional trade will result in increased demand
for arbitration services, particularly in energy and natural
resources
Established institutions still popular – LCIA, ICC, ICSID
Questions?