On 19 March 2013, at a seminar in London attended by over 150 delegates, specialists from across our award-winning Africa practice addressed latest trends, practical workarounds and handling risk in Africa. At the event, Herbert Smith Freehills launched its Guide to dispute resolution in all 54 of Africa’s diverse jurisdictions.
Our Africa practice comprises one of the largest teams of common law and civil law lawyers which, over the past 30 years, has been advising commercial clients on all aspects of investment and risk across almost all of the continent’s countries. In producing the Guide, we have drawn on the combined knowledge and experience of Africa practice lawyers in both our London and Paris offices, as well as qualified and experienced local counsel in each of the jurisdictions covered. The Guide has been published in tandem with the planned launch of our office in Conakry, Guinea, which will be the firm’s first on-the-ground presence on the continent.
A series of questions on litigation, arbitration, ADR and reform were devised for local counsel in the various jurisdictions, and we worked closely with them to produce a detailed publication, running to over 300 pages. The Guide will assist you, whether you want to know the basics of the legal system, details on litigation and arbitration procedures, if ADR is embraced in a particular country, or what the applicable limitation periods or privilege rules are.
In relation to ADR, the message across Africa is mixed. ADR is, on its face, a natural dispute resolution process for the continent. With its emphasis on flexibility and informality over consideration of strict legal rights and obligations, one would expect ADR to be more prevalent. Yet it remains generally underdeveloped in the commercial sphere, despite often being an adjunct to arbitration (usually through the official national arbitration centre). That said, a number of jurisdictions have incorporated mandatory mediation or conciliation procedures of some form into certain civil litigation processes (such as Algeria, Chad, Equatorial Guinea, Gabon, Ghana, Malawi, Namibia, Nigeria, Republic of Congo, Rwanda, Senegal, Sierra Leone, Tanzania, and Uganda). Generally, however, ADR is not compulsory unless the parties have contractually agreed to it, which is rare. It is generally regarded as a positive process, though, in need of wider application. A number of local counsel have noted that reform in the context of ADR is on the horizon in their countries.
We asked local counsel whether parties to litigation or arbitration were required to consider or submit to ADR procedures before or during proceedings. We will feature the responses of the various jurisdictions in upcoming posts and cover our first five jurisdictions below (Algeria, Angola, Benin, Botswana and Burkina Faso).
The Code of Civil and Administrative Procedure includes alternative dispute resolution procedures (mediation and conciliation).
The court may act as conciliator at any time during the proceedings with the agreement of the parties. Furthermore, Algerian law requires the court to offer mediation to the parties in all matters except for family and employer-employee matters and in cases that may infringe public policy.
There is no legal requirement to submit to any alternative dispute resolution before or during court or arbitral proceedings, unless the parties enter into an express agreement.
Subject to specific provisions applicable in certain areas of law (eg, in employment disputes, parties must always undertake preliminary conciliation), parties are not obliged to undertake conciliation or mediation proceedings prior to legal action. However, either party may request this on the basis of the dispute when the proceedings are first filed and prior to the submission of arguments on the merits (article 490 of the Beninese Civil Procedure Code). The parties may also go to conciliation or mediation of their own accord or on the initiative of the judge at any time during the proceedings (article 491 of the Beninese Civil Procedure Code).
Parties to arbitration are not required by law to consider or submit to ADR before or during proceedings, unless the underlying agreement requires it of the parties.
With respect to labour disputes, parties are required by the Trade Disputes and Employment Act first to attempt mediation before proceeding to arbitration.
As regards litigation, parties are not required to mediate before issuing proceedings, unless the underlying agreement requires it. The courts encourage the parties to settle during the case management process but do not compel them to mediate. However, the Chief Justice recently made reference to ADR/mediation procedures to be introduced.
Proceedings are not subject to any mandatory prior mediation or conciliation unless the law provides otherwise. However, in all areas, parties may enter a voluntary appearance before the competent court for the purposes of conciliation. Claimants may also issue a summons to defendants requiring conciliation, so long as the period for issuing the summons is observed (Article 451 of the CPC).