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Effective Dispute Resolution in Africa: Knowing the Territory - Roger Wakefield, Werksmans Attorneys
1. EFFECTIVE DISPUTE
RESOLUTION IN
AFRICA – KNOWING
THE TERRITORY
ROGER WAKEFIELD
2. 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)
3. OHADA : ORGANISATION FOR THE
HARMONISATION 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
4. 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
5. 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
6. 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
7. 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
8. ENFORCEMENT OF ARBITRAL AWARDS IN
OHADA 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
9. 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
10. ENFORCEMENT ELSEWHERE IN AFRICA AND
SOUTH 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
11. ENFORCEMENT ELSEWHERE IN AFRICA AND
SOUTH 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
12. ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
IN 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
13. 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
14. CASE STUDY: SOGEM V BANRO [2002] JOL 9854 (C)
Litigation in the DRC
Lessons learnt –
Agree to arbitrate
Avoid DRC courts
Seek advice before defending litigation in the DRC
15. CONCLUSION
Many African countries encourage ADR
Many ADR options for African disputes
Give careful consideration to dispute resolution provisions
in African cross-border transactions.