Transcript of "Effective Dispute Resolution in Africa: Knowing the Territory - Roger Wakefield, Werksmans Attorneys"
EFFECTIVE DISPUTE RESOLUTION INAFRICA – KNOWING THE TERRITORY ROGER WAKEFIELD
INTRODUCTION Sub-Saharan Africa is one of the world’s fastest growing regions particularly in infrastructure, mining, energy and telecommunications Number of commercial disputes in Africa increasing Legal systems differ significantly from country to country – a difficulty for investors Discussion today- OHADA: West African initiative to harmonise business and alternative dispute resolution laws; Enforcement of foreign arbitral awards in Africa generally and in South Africa; Case studies – Democratic Republic of the Congo (DRC)
OHADA : ORGANISATION FOR THEHARMONISATION OF BUSINESS LAW IN AFRICA Supranational organisation founded in 1993 Good example of regional initiative encouraging effective ADR in Africa Encourages foreign investment Purpose is to modernise, standardise and harmonise commercial law in Africa Promotes regional integration and economic growth
OHADA (CONTINUED) OHADA members – Benin, Burkina Faso, Cameroon, Central African Republic, The Comores, Congo, Ivory Coast, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, mali, Niger, Senegal, Chad and Togo DRC joining OHADA
OHADA (CONTINUED) Harmonisation of national law achieved through “Uniform Acts” Uniform Acts on – Company Law Insolvency Securities Accounting Arbitration Uniform Acts supersede contradictory national law
THE UNIFORM ARBITRATION ACT Enacted by each member state Provides a arbitration framework based on UNCITRAL model law Awards are final and binding in all OHADA member states Simple mechanism for enforcement : domestic and international awards Parties elect members of arbitral tribunal Parties choose rules of procedure
COMMON COURT OF JUSTICE AND ARBITRATION(CCJA) Established under the OHADA treaty Sits in Abidjan, Ivory Coast Judicial and arbitral functions Judicial capacity : reviews awards in limited instances and scrutinises awards Arbitral capacity : supervision of administration of arbitration proceedings. CCJA Rules apply
ENFORCEMENT OF ARBITRAL AWARDS INOHADA STATES Exequatur issued by a judge confirming the existence of award Exequatur refused on very limited grounds – public policy CCJA issues exequatur where judge refuses it Awards final and not subject to appeal
REVIEW FOR NULLITY Judge of member state reviews for nullity CCJA may set aside judge’s decision Limited grounds for review for nullity- Tribunal acted beyond its powers Tribunal irregularly appointed Award made in absence of valid arbitration agreement Failure to observe due process No reasons given for award
ENFORCEMENT ELSEWHERE IN AFRICA ANDSOUTH AFRICA IN PARTICULAR 27 African states are party to New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards Courts of signatory states must give effect to agreements to arbitrate and recognise arbitration awards in other contracting states African signatories to New York Convention : Algeria, Benin, Botswana, Burkina Faso, Cameroon, Central African Republic, Ivory Coast, Djibouti, Egypt, Gabon, Ghana, Guinea, Kenya, Lesotho, Liberia, Mali, Mauritania, Mozambique, Niger, Nigeria, Rwana, South Africa, Tunisia, Uganda, Zambia and Zimbabwe New York Convention facilitates enforcement with minimum inconvenience
ENFORCEMENT ELSEWHERE IN AFRICA ANDSOUTH AFRICA IN PARTICULAR (CONTINUED) Foreign arbitral awards – freely enforceable in other signatory states New York Convention allows limited defences – Legal incapacity of party to arbitration agreement No notice given or party barred from presenting case Arbitrator exceeded jurisdiction Composition of tribunal contrary to arbitration agreement Award not final Subject matter of award not arbitrable Award contrary to public policy Reciprocity
ENFORCEMENT OF FOREIGN ARBITRAL AWARDSIN SOUTH AFRICA South Africa party to New York Convention Convention given effect to by Enforcement of Foreign Arbitral Awards Act 1977 Attachment of asset required to found jurisdiction to enforce award against foreign defendant South African court will not reconsider the merits of the case
PROTECTION OF BUSINESSES ACT OF 1978 Unnecessary obstacle to enforcement Section 1(3) requires approval of the Minister of Trade and Industry for enforcement if foreign award connected with- “an act or transaction …which took place at any time… and is connected with the mining, production, importation, exportation, refinement, pos session, use or sale of or ownership [of] any matter or material , of whatever nature, whether within, outside, into or from the Republic” Very wide wording Prima facie applies to all foreign awards Section abused by defendants seeking to delay Courts interpret section restrictively : applies to raw materials only
CASE STUDY: SOGEM V BANRO  JOL 9854 (C) Litigation in the DRC Lessons learnt – Agree to arbitrate Avoid DRC courts Seek advice before defending litigation in the DRC
CONCLUSION Many African countries encourage ADR Many ADR options for African disputes Give careful consideration to dispute resolution provisions in African cross-border transactions.