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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OHADA CCJA court annuls €38 million arbitral award against Guinea

In a highly unusual decision, the Cour Commune de Justice et d'Arbitrage (CCJA), the court created by the Organisation pour l'Harmonisation en Afrique du Droit des Affaires (the Organisation for the Harmonisation of Commercial Law in Africa or OHADA) Treaty, signed by 17 African States*, has ruled that an award should be set aside on the grounds that the arbitrators had entered into a separate fee agreement with the parties to the arbitration. The CCJA held that, in so doing, the Tribunal had exceeded its mandate and deliberately excluded the mandatory provisions of OHADA arbitration rules providing that the parties are bound by the fees set by the CCJA.  In response to the CCJA's decision, the three arbitrators in question have taken the equally unusual step of writing an open letter to the arbitration community and the CCJA, publicly criticising the decision and calling for their colleagues' support. The CCJA's decision has the potential to have important and far-reaching consequences for arbitration in the OHADA region and the willingness of international arbitrators to sit as arbitrators in arbitrations governed by the CCJA rules in future. The decision and its implications are discussed further below.

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Arbitration in Africa: Recent developments

The Court of Appeal of the Lagos Judicial Division recently issued a pro-arbitration decision holding that courts may only intervene in arbitral proceedings where specifically permitted by Nigeria’s arbitration law and set aside an injunction obtained ex parte by Nigeria’s state oil company NNPC restraining arbitration proceedings brought by Chevron and Statoil.

Meanwhile, the Democratic Republic of Congo (DRC) has become the 150th state to accede to the New York Convention, making a notable reservation that excludes enforcement of arbitral awards that relate to mining interests in the DRC.

Whilst these developments continue the encouraging trend towards international norms in arbitration judicial practice and legislation in parts of Africa, careful planning and an awareness of the continent’s legal diversity remain as important as ever for businesses operating in the region.

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Herbert Smith Freehills launches ground-breaking Guide to Dispute Resolution in Africa

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 groundbreaking Guide to dispute resolution in all 54 of Africa’s diverse jurisdictions. To access an extract of the guide, please click here. If you would like to request a copy please email africadisputes@hsf.com.

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