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Arbitration in Africa: survey identifies top arbitral centres and seats

Out-Law News | 17 Jul 2020 | 3:16 pm | 3 min. read

A recent study has highlighted the largely positive experience businesses have had in raising arbitration proceedings in Africa, with Cairo in Egypt and Johannesburg in South Africa considered the most popular seats of arbitration on the continent.

The SOAS University of London survey gathered data from 350 respondents across 34 countries including Africa, Asia, Middle East, North America, and Europe on their attitudes towards arbitration in Africa. The respondents were made up of people familiar with arbitration in Africa, including arbitrators, counsel, tribunal secretaries, experts and disputants.

Of the 350 respondents, 88% said they would recommend African arbitral centres to users of arbitration. Almost one third selected Cairo as the most popular seat of arbitration in Africa, with Johannesburg, Kigali, Lagos and Cape Town the others in the top five.

Wilkins Rob

Rob Wilkins

Partner

The seat of the arbitration is important as it ... will dictate the relationship between the arbitral tribunal and the courts and will have significance when it comes to enforcing the arbitral award

Reasons stated in support of these choices included the existence of arbitration friendly laws and jurisdictions and the availability of arbitration expertise. As the seat may also be the physical place where the arbitration takes place, other reasons stated included: easy accessibility and transport links, access to modern technology and facilities, the fact that these cities are major economic hubs in Africa, the reputation of the arbitral centre situated in the city concerned, political stability and a sense of security.

Rob Wilkins, arbitration specialist at Pinsent Masons, the law firm behind Out-Law, said:  "The seat of the arbitration is important as it determines the law of the arbitration. That will dictate the relationship between the arbitral tribunal and the courts and will have significance when it comes to enforcing the arbitral award. It is therefore not surprising to see these cities rank highly, as they are generally in jurisdictions with strong, modern arbitration laws and judiciaries that are supportive of the arbitral process."

The survey also identified the most popular African arbitral centres in Africa. The Arbitration Foundation of Southern Africa (AFSA) in South Africa was ranked top, followed by the Cairo Regional Centre for International Commercial Arbitration (CRICA), the Kigali International Arbitration Centre in Rwanda, the Lagos Court of Arbitration in Nigeria and the Nairobi Centre for International Arbitration in Kenya.

A coding exercise used to establish the top African arbitral centres based on the number of cases administered and memoranda of understanding concluded with other arbitration centres had AFSA and CRCICA in the first two positions too, ahead of the Ouagadougou Arbitration and Mediation & Conciliation Centre in Burkina Faso.

Dr Emilia Onyema, reader in international commercial law at SOAS and author of the survey report said: "Our finding on the top two arbitral centres in Africa was not surprising since the two centres are very well known and well recognised. The surprise finding was the lesser known Ouagadougou centre whose caseload is impressive for its region. Our findings also raise the question whether regional arbitral centres are beginning to emerge on the continent. My view is that it is a little too early to call."

The results of the survey also revealed the quality of services that arbitral centres in Africa can deliver in comparison to their foreign counterparts.

A recurring feature relates to the importance of technology in the administration of the arbitral process. The Africa Arbitration Academy Protocol on Virtual Hearings in Africa 2020, developed earlier this year, is designed to further support the use of technology in arbitration.

Wilkins said the survey's findings on technology shows that the average arbitration practitioner in Africa is technologically astute and has a clear understanding of the role technology can play towards effective dispute resolution delivery. He said the findings could also serve as a useful checklist for African arbitral centres to critically assess their service provision and delivery parameters to its users.

The survey also identified some of the difficulties faced by users when arbitrating in Africa. Issues highlighted include unclear local laws on arbitration, dealing with dilatory tactics from parties and lawyers, frequent recourse to the courts during the arbitration proceedings, difficulties in enforcing an award and the increased costs of the arbitration process in comparison to arbitrations conducted elsewhere.

"Whilst these issues are far from unique to African jurisdictions and arbitral centres, and indeed, many of these issues are already being addressed through national and supranational initiatives, they provide a timely reminder to African arbitration centres of what parties are looking for when choosing where, and under whose auspices, to arbitrate," Wilkins said.