Perspectives on the SOAS Arbitration in Africa Survey 2020

Prof Paul Obo Idornigie, SAN, C.Arb
Abuja, Nigeria

In early 2018, SOAS, University of London, published the SOAS Arbitration in Africa Survey 2018.1 The team was led by Dr Emilia Onyema. The thrust of the Survey was to address the perception that African arbitration practitioners were not competent and skilled enough to be appointed arbitrators in international arbitration. Consequently, arbitrations arising from Africa were settled by non-Africans and outside Africa. This perception was based on ‘anecdotal evidence’ and not empirical evidence. The Survey attracted respondents from 191 respondents from 19 African and 12 non-African countries, 90.6% of the respondents were lawyers and 83.8% described themselves as arbitration practitioners. Although more arbitration practitioners have experience in domestic arbitration in comparison to international arbitration, the top three reasons for the under representation in international arbitration are: poor perception of African arbitration practitioners as lacking experience and expertise; bias by appointors in favour of foreign arbitrators; and Africans not appointing fellow Africans as arbitrators. Among other key findings, the Survey showed clearly that a significant majority of African arbitration practitioners are formally trained in arbitration and hold memberships of arbitration associations. Nigeria had the highest number (61.8%) of active African arbitration practitioners who are qualified to practice in African jurisdictions, followed by South Africa (8.9%) and Ghana (4.2%). This Study was ground-breaking.

In June 2020, Dr Onyema published the Arbitration in Africa Survey 20202 that focused on arbitration centres and seats. Africa has 91 arbitration centres3 and 54 countries. 350 responses were received from individuals in 34 countries across Africa, Asia, Middle East, North America and Europe. Out of this number, 83% have participated in arbitration in Africa; 60% have participated in institutional arbitration in Africa and 48% have participated in ad hoc arbitration. Expectedly, the top five arbitral centres in Africa as determined by an independent coding exercise are: Arbitration Foundation of South Africa (AFSA), Cairo Regional Centre for International Commercial Arbitration (CRCICA), Ouagadougou Arbitration and Mediation & Conciliation Centre (OAMCC), OHADA Court of Justice and Arbitration Centre (CCJA) and Kigali International Arbitration Centre (KIAC). However, the top five arbitral centres as chosen by the respondents are AFSA, CRCICA, KIAC. Lagos Court of Arbitration (LCA) and Nairobi Centre for International arbitration (NCIA) with AFSA, CRCICA, LCA, NCIA and CCJA having the best support facilities. Similarly the top five African cities that host arbitration are Johannesburg, Lagos, Cairo, Cape Town and Durban; and the top five African countries that act as seat of arbitration are South Africa, Nigeria, Egypt, Rwanda and Cote d’Ivoire.

According to this Study, although there are 91 centres, ‘some of these centres do not administer arbitration cases but provide facilities including hearing rooms to support the private dispute resolution process; while some effectively act as appointing authorities and again do not administer arbitration references’.4 I share the view that Africa has many arbitration institutions but the real question is whether they are really arbitral centres providing effective services for arbitration and other alternative dispute resolution processes. For instance, Nigeria has at least six centres, South Africa also has six while Egypt has three.5 I think that we must draw a line between arbitration institutions per se and arbitral centres.

Unlike Egypt and South Africa that adopted the UNCITRAL Model Law on International Commercial Arbitration in 1994 and 2017 respectively, Nigeria adopted the Model Law in 1988 and the Lagos State Government passed its Arbitration Law in 2009. Why is Nigeria not leading in terms of arbitral centres and seat of arbitration? From my personal knowledge, most hearings in Nigeria are either held in hotels or law offices of the Legal Practitioners. Such hearings whether domestic or international, on the one hand, and ad hoc or institutional, on the other hand, are not documented. This probably accounts for the poor performance of Nigeria in this survey report. This is without prejudice to the fact that issues of security, facilities, infrastructure and integrity of the Nigerian courts may also be factors responsible for the poor ranking of Nigeria in the continent.

As a Nigerian, the issue of seat of arbitration has attracted more attention since the publication of the Final Award of 31 January, 2017 in Process & Industrial Development Limited v Federal Republic of Nigeria (ad hoc Arbitration under the English Arbitration Act and Nigerian Arbitration and Conciliation Act.6 The seat of arbitration (or the juridical seat or the place of arbitration) is a fundamental concept linking a particular arbitration to a defined legal system. Its importance is underscored by the fact, that it is at the seat that jurisdictional issues are addressed as well as applications to set aside an award. It will be interesting to know why African countries prefer foreign seats to African seats. In my view, this is a matter of negotiation and addressed at the point that the contract is being negotiated. While the venue for hearing can change, the seat does not change without the consent of all parties. In drafting contracts with arbitration clauses, African states should ensure that the seat of arbitration is in Africa while venue for hearing can be anywhere. They should also ensure that the governing law of the underlying contract is an African law. This way, more arbitrations will be attracted to Africa and our arbitral centres will be developed.

In terms of arbitral centres, I think that Africa has not fared badly. The question is what facilities are available at the centres? Secondly, what is the status of the arbitral legal frameworks in Africa and the issues of infrastructure and integrity of the courts? The African Promise aims to improve the profile and representation of African arbitrators (in international arbitration), and the appointment of Africans as arbitrators (especially in arbitrations connected to Africa).7 Other than undertaking this pledge, African countries should ensure that the contracts having arbitration clauses are properly negotiated and provide adequate and effective facilities at the arbitral centres.