ARBITRATION IN AFRICA – QUO VADIS? AFRICARB LAUNCHES IN PARIS

Announced during Paris Arbitration Week, AfricArb held its launch event in Paris on 14 June 2018. Dr Gregory Travaini, Senior Associate in Herbert Smith Freehills’ Hong Kong office, and co-founder of AfricArb, reports.

AfricArb is a non-profit organisation of young practitioners who share a common ambition to further the development of arbitration as an efficient and accessible method of dispute resolution on the African continent. According to AfricArb, the promotion of arbitration in Africa will have to be based on three main pillars: (i) the continued modernisation of arbitration rules and practice, (ii) a respect for the diversity of legal cultures on the African continent; and (iii) the involvement of actors inside and outside the continent, who will provide training and events to facilitate an exchange of views, information and knowledge.

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Environmental and Human Rights issues in Africa have international implications – know what rights and remedies apply

In the first of our regular Africa themed webinars, on Thursday 5 October 2017, 1.00 – 2.00pm BST, we will consider the international implications of environmental and human rights issues in Africa, including:

  • The extraterritorial impacts of a local crisis: international treaty claims and the growing trend of class actions
  • To stay or to go: the risks of exit vs. remaining in-country following a crisis
  • The importance of investment structuring to maximise protection
  • Relying on treaty rights in Africa if things go wrong
  • Preventing and managing crises in Africa

Speakers

John Ogilvie, Partner, Dispute Resolution, London

Andrew Cannon, Partner, International Arbitration, Paris

Laurence Franc-Menget, Of Counsel, International Arbitration, Paris

To register for the webinar, please contact Prudence Heidemans. Continue reading

New York Convention 1958 to enter force in Angola on 4 June 2017

Angola has become the 157th Contracting State to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. On 6 March 2017, Angola deposited its instrument of accession to the Convention with the UN Secretary General.  Under Article XII(2), the Convention will enter into force in Angola on 4 June 2017, 90 days after the deposit of its instrument of accession. Unlike many states, Angola has not made any declarations, notifications or reservations regarding the application of the Convention.  The most frequently made declarations are to apply the Convention only to: (i) recognition and enforcement of awards made in the territory of another contracting State (the so-called "reciprocity reservation"); and (ii) differences arising out of legal relationships that are considered commercial under the national law (the so-called "commercial reservation").

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Inside Arbitration: Issue #3 of the publication from Herbert Smith Freehills’ Global Arbitration Practice

We are delighted to share with you the latest issue of the publication from Herbert Smith Freehills' Global Arbitration Practice, Inside Arbitration.

In addition to sharing knowledge and insights about the markets and industries in which our clients operate, the publication offers personal perspectives of our international arbitration partners from across the globe.

In this issue:

  • Paula Hodges QC, Peter Leon, Craig Tevendale and Chris Parker share their insights into the development of commercial arbitration on the African continent and consider dispute resolution choices for parties negotiating Africa-related contracts.
  • We consider the development of arbitration in Rwanda and the Kigali International Arbitration Centre "in conversation" with KIAC's secretary general, Dr Fidèle Masengo.
  • Peter Godwin, Regional Head of Disputes Asia, reflects on his 16 years in Asia and the changes in attitudes towards dispute resolution amongst Japanese parties.
  • Dr Patricia Nacimiento, Thomas Weimann and Dr Mathias Wittinghofer give their view on whether Germany is on its way to becoming a true arbitration powerhouse.
  • Chris Parker, Elaine Wong, Gitta Satryani and Elizabeth Kantor provide a global perspective on the availability of security for costs and claim in international arbitration.
  • Dr Larry Shore discusses his path into public international law and the development of his interest in treaty disputes, as well as the differences in arbitration practice in the US and the UK and trends in US arbitration.
  • We highlight a number of key considerations for parties negotiating contracts with state and state-owned entities across the globe and provide comparative into state immunity in five key jurisdictions.

We are pleased to present our clients with an infographic providing a snapshot of our global arbitration practice in the two years 2014-2016.

The infographic details the successes of our growing practice and our huge geographical reach. The infographic is available at this link and at page 25 of Inside Arbitration.

The full digital edition can be downloaded in PDF by clicking on this link.

We hope that you enjoy reading Issue #3 of Inside Arbitration. We would welcome your feedback.

Angola becomes 157th Contracting State to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Angola has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.  Its ratification was endorsed domestically via resolution No. 38/2016, published in the Official Gazette of Angola on 12 August 2016. Under Article XII(2) of the New York Convention, the ratification will take effect on the 90th day after deposit by Angola of its instrument of ratification with the Secretary-General of the United Nations.

Angola has one of the world’s fastest growing economies and in 2015 was reported by the US State Department to be sub-Saharan Africa’s second largest oil exporter. Ratification of the New York Convention represents a further step by Angola in fostering and promoting a stable investment climate. It follows the ratification of the Private Investment Law in August 2015, the main purpose of which was to simplify the procedure for national and foreign investment and to provide tax and other incentives.

The Angolan Arbitration Law (Law 16/2003 of 25 July) (the Arbitration Law) is largely based on the old Portuguese Arbitration Law (Law 31/1986 of 29 August) and bears considerable similarity to the UNCITRAL Model Law. The Arbitration Law provides for domestic and international arbitration.

The ratification of the New York Convention will provide reassurance for parties investing or intending to invest in Angola that they can resolve their Angola-related disputes by means of arbitration seated outside Angola, and that arbitral awards made in relation to such disputes should be recognised and enforced in Angola.  Precisely how the Convention obligations will be implemented of course remains to be seen over the coming months, including in the context of the application of the Arbitration Law to those obligations, and the practical commercial and judicial acceptance of arbitration as a method of resolving disputes going forward.

Foreign investors should also continue to consider the application of the Private Investment Law in relation to arbitration. The Private Investment Law permits the arbitration of disputes that arise from investment contracts between the Angolan state (represented by the direct or indirect administration body to which authority is delegated) and the private investor (Article 46(3)). However, if arbitration is chosen as the form of dispute resolution for such investment contracts, it must take place in Angola, and the law applicable to the substance of the contract and the proceedings must be Angolan (Article 46(4)). 

Herbert Smith Freehills launches the second edition of its ground-breaking Guide to Dispute Resolution in Africa in September 2016. The Guide covers all 54 of Africa's diverse jurisdictions.

For further information, please contact Peter Leon, Partner, Andrew Cannon, Partner, or Hannah Ambrose, Professional Support Consultant or your usual Herbert Smith Freehills contact.

Peter Leon
Peter Leon
Partner
+27 11 282 0833
Andrew Cannon
Andrew Cannon
Partner
+ 33 1 5357 6552
Hannah Ambrose
Hannah Ambrose
Professional Support Consultant
+44 20 7466 7585

HSF/CEPMLP Conference: Oil and gas in East Africa: An international legal perspective

This 1½ day East African Oil and Gas conference in Nairobi provides a unique forum for an engaging and interactive legal discussion on the state of play and road ahead for the oil and gas sector in East Africa. The conference will held in conjunction with The University of Dundee’s Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP) and includes speakers from Herbert Smith Freehills, CEPMLP and Anjarwalla & Khanna. The keynote speech will be delivered by the Kenyan Attorney General, Hon. Prof Githu Muigai.

Date: Thursday 17 September 2015Friday 18 September 2015 (am only)
Time: 17 September: 8am: Registration and breakfast (lunch included) 9am: Keynote speech 6pm: Cocktail reception18 September: 8:30am: Registration 2pm: Finish (lunch included)
Venue: Villa Rosa Kempinski Nairobi Hotel, Chiromo Road, Nairobi, Kenya Please click here to view map

For more information about the conference programme, please see below. To register your interest in attending, please contact Paul McKeating.

Summary

Herbert Smith Freehills is a leading global law firm in the energy sector with over three decades of experience advising clients across the African continent. CEMPLP is an internationally renowned graduate school in the field of natural resources and energy law and policy.

The conference will provide an opportunity to explore the most important international and domestic themes surrounding the continued developments in the oil and gas industry in East Africa. The programme has been specifically tailored to the interests of in-house counsel and commercial representatives involved in this area. Topics for discussion will include:

  • Exploration and Upstream developments: the road ahead
  • Route to market
  • Financing and bankability
  • Applicable tax laws and mitigating structures
  • Stakeholder engagement and human rights
  • Anti-bribery and corruption issues
  • Avoiding disputes and managing crises
  • Dispute resolution – international and domestic litigation and arbitration

Our confirmed speakers currently include:

Further updates and confirmation of additional speakers to follow. We look forward to seeing you in Nairobi on 17 September. Places are limited, so please be sure to register your interest.

Paula Hodges QC
Paula Hodges QC
Partner, Head of global arbitration practice
+44 20 7466 2027
Chris Parker
Chris Parker
Partner, Legal Consultant (admitted to the practice of law in England)
+1 212 519 9880
Charlie Morgan
Charlie Morgan
Associate
+44 20 7466 2733

 

New York Convention enters force in the Democratic Republic of the Congo

Today, 3 February 2015, the Democratic Republic of the Congo became a Contracting State to the New Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. In June 2013, the DRC passed legislation to facilitate its accession to the New York Convention. However, in order to finalize the accession, the DRC needed to deposit its instrument of accession with the Secretary-General of the UN, 90 days after which the New York Convention would enter into force. Continue reading

Burundi becomes 150th state party to the New York Convention

Burundi, a state in East Africa, has become the 150th state party to the New York Convention 1958 (the Convention). Burundi made a “commerciality reservation” to the Convention, which means that the Convention will only apply to disputes characterized as commercial under municipal law. So long as this requirement is met, as of 21 September 2014 (the date the Convention comes into force in Burundi), arbitral awards made in Burundi will be enforceable in all states that are party to the New York Convention, and awards made in other states will be enforceable in Burundi.

No doubt, this is likely to improve the confidence of foreign investors not only in Burundi, but East Africa generally, as all members of the East African Community (comprising the Republics of Burundi, Kenya, Uganda and the United Republic of Tanzania) have now become party to the New York Convention. In the last few years, East Africa has become a new hot spot for foreign investors particularly as new oil reserves have been discovered in Kenya and Uganda, and given the presence of hydrocarbons generally in East Africa. It is apparent that governments of the member states of the East African Community have recognized that to retain these foreign investors and attract new ones, they must ensure their legal framework has been modernized and that visible steps are taken to demonstrate their seriousness in doing so. For example, Rwanda opened the Kigali International Arbitration Centre in 2012, and Kenya has recently announced the opening of the Nairobi International Arbitration Centre. These are all encouraging and positive steps which are likely to have a significant impact on investor confidence in East Africa.

For further information, please contact Andrew Cannon, Partner, Saloni Kantaria, Senior Associate, or your usual Herbert Smith Freehills contact.

Andrew Cannon
Andrew Cannon
Partner
+44 20 7466 2852
Saloni Kantaria
Saloni Kantaria
Senior Associate
+971 4 428 6346