As investment continues to flow into the continent, the number of disputes is also rising
Over the last decade investment into Africa from foreign companies, financial institutions and private equity groups has soared, while investment between African countries is also increasing. For those willing and able to seek out its opportunities, Africa represents the world’s largest emerging market, but there are several factors that are particular to doing business in the continent that mean the scope for dispute resolution will inevitably increase.
- Governments may seek to revisit past legislation or renegotiate agreements with a view to obtaining higher revenues
- As the ‘soft law’ obligations of companies are increasingly on the radar of governments and civil rights organisations, disputes could arise where companies are alleged to have made investments without due care for the rights and concerns of local communities
- Disputes may also be caused by dealings with governments that are under international censure or sanctions regimes, or with unethical officials in legitimate governments
Before resorting to litigation or arbitration in Africa, there are several commercial issues that should be considered. First, it is important for companies to assess their framework of operations, as there could be existing or potential projects in the country that militate against getting into a full-blown dispute.
Second, the publicity of litigation may play into the hands of competitors, as there could be plenty of other investors ready to step into disputing parties’ shoes.
Third, the majority of disputes in Africa are resolved through commercial settlement, with companies and states alike preferring negotiation over the uncertainties of litigation or arbitration.
Finally, legal technicalities often carry greater weight in African jurisdictions than in Western proceedings, so the relative strengths of parties’ legal positions need to be factored in with care.
It is not always possible for international companies to confine the conduct of litigation to their own shores. African state entities that enter into contracts may require that any disputes are resolved before their local courts applying local law, or by domestic arbitration.
While many jurisdictions have well-developed legal systems with commercially minded and experienced judges, local courts in some countries suffer from delays, protracted appeal and enforcement processes, and judiciaries that are less well-equipped or used to dealing with complex international transactions.
The civil court structures across all African jurisdictions generally have a predictable hierarchy. Local courts typically derive jurisdiction from the sum in dispute, with higher courts being reserved for larger disputes. Almost all jurisdictions have a Court of Appeal and Supreme Court (or equivalent).
Aside from the civil court system, traditional courts often play a major role in rural areas. Village elders or specialist lower courts may determine property disputes under customary law, and in some jurisdictions the application of customary law permeates throughout the entire court system.
Many investors are reluctant to expose themselves to proceedings in local courts with which they are unfamiliar, and hence the neutrality, choice of rules and venue and confidentiality of arbitration are attractive.
There are several jurisdictions where local laws provide the necessary legislative and judicial support for onshore arbitration, but in other jurisdictions less experienced judiciaries and untested legislation point to offshore arbitration being the better choice.
Regardless of whether offshore or onshore arbitration is chosen, its chief advantage is the ability to enforce an award.