Editors' Note - Arbitration Committee, November 2021

Wednesday 24 November 2021

Nania Owusu-Ankomah Sackey
Bentsi-Enchill Letsa & Ankomah, Accra
nowusu-ankomah@belonline.org

Michelangelo Cicogna
De Berti Jacchia Franchini Forlani, Milan
m.cicogna@dejalex.com​​​​​​​

Arbitration in Africa has grown exponentially over the last decade. Many African countries are now parties to the New York Convention, and many more have embraced arbitration as a viable form of dispute resolution. There is also an increasing number of arbitration disputes arising from the continent because of the significant foreign investments made in Africa. This edition of the newsletter is an ode to, and acknowledgement of, the remarkable contributions that Africa-related disputes are making to the growth of arbitration.

In this edition, we have 14 articles dealing with diverse themes related to arbitration on the African continent.

We have four articles discussing different aspects of the African Continental Free Trade Area agreement (AfCTA), a development that will no doubt increase the use of arbitration in Africa. One article, authored by Dr Emilia Onyema, advocates for the use of arbitration before identified regional arbitration centres in Africa to resolve intra-African private commercial cross-border disputes arising from the implementation of AfCFTA. Another article, co-authored by Christopher Moore, Laurie Achtouk-Spivak, Naomi Tarawali and Zeineb Bouraoui, discusses the impact of trade and foreign direct investment stimulus in Africa on dispute resolution. A third article, by Dharshini Prasad, explores how Article 19 of AfCFTA tackles the fragmented trade and regulatory landscape against which AfCFTA has been negotiated.  The fourth article, contributed by Foluke Akinmoladun, analyses the possible inclusion of mediation and med-arb under AfCFTA through the AfCFTA Investment Protocol for disputes between private parties.

Kamal Shah, Jide Adesokan and Afolarin Awosika discuss recent efforts to modernise commercial arbitration practice in Africa in their article, and consider statutory reforms on the continent. Tafadzwa Pasipanodya and Javier García Olmedo have also contributed an article which examines various innovations in investment treaty reform by African states to attract foreign investment and promote sustainable development, while at the same time avoiding costly international arbitrations.

We have two articles focused on third-party funding in Africa. One article discusses the current legal framework for third-party funding in Nigeria and its prospects for the future, co-authored by Godwin Omoaka, Stanley Nweke-Eze and Olusola Odunsi. The other article, co-authored by Oluwasen Philip-Idiok and Osinachi Nwandem, appraises the efficacy of the indirect attempts introduced by Nigeria, Ghana and South Africa to regulate third-party funding of arbitration.

Another article, co-authored by Hamid Abdulkareem and Lolade Tijani, considers the question of whether an arbitrator is required to withdraw once his appointment is challenged under Nigerian law. The conclusion is that tribunals must continue to scrutinise allegations of bias and, where they are ‘unsubstantiated or fanciful’, they can be rejected.

We also have an article written by Mushtaq Namdarkhan which discusses the Privy Council’s decision in Betamax v State Trading Corporation and Essar Steel v Arcelormittal USA. Christine Mugenyu and Danika Balusik also examine recent case law in South Africa and Kenya regarding adherence to time-barring provisions in arbitration agreements in their article.

In another article, Duncan Bagshaw and Sanchita Agrawal discuss the English Court of Appeal’s decision in the ‘Tuna Bond’ or ‘Hidden Debt’ scandal, where the court clarified the test for stay of proceedings for arbitration. Finally, we have a country update on arbitration in Chad, written by Mahamat Atteib, which examines the Code of Civil, Commercial and Social Proceedings, a new legislation in Chad devoted to arbitration and the implementation of the OHADA Uniform Act on Arbitration.

The diversity of the authors who contributed to this edition reflects the diversity of the professionals involved in arbitration disputes relating to the African continent. Our work on this edition of the newsletter has been a unique learning experience, and we therefore have no doubt that it will be the same for our readers.

We give our immense appreciation to the authors who gave their time to contribute to this edition of the newsletter. We also thank the members of the Editorial Board, whose diligent review has contributed to making this special edition of the newsletter successful. We also appreciate the IBA production team for their support.