Kamal Shah Lagos 1921 june 2016 249072481 This is a complex topic 54 diverse legal systems Arbitration has existed for centuries but formal legislation started to be introduced in the late 1800s ID: 780789
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Slide1
1
st ICC Africa Regional Arbitration Conference
Kamal Shah
Lagos, 19-21 june 2016
24907248.1
Slide2This is a complex topic
54 diverse legal systems
Arbitration has existed for centuries, but formal legislation started to be introduced in the late 1800s.
Today:Various degrees of sophistication.
Alignment with international standards
Around 9 countries have passed legislation based on UNCITRAL Model Law. Around 35 countries are signatories to the New York Convention 1958.
The Impact of the Judiciary on Arbitration in sub-Saharan Africa
Slide3Huge
disparity in training of Judges e.g. Designated Judges in Mauritius (6) under the International Arbitration Act Regime.
No real consistency in most parts of Africa re: approach to arbitration
.Proliferation of arbitration centres – 60
+
Huge growth in arbitrationTherefore role of the Court has come under a big spotlight
The Impact of the Judiciary on Arbitration in sub-Saharan Africa
Slide4Many factors including:
Awareness and training – role of Government; private sector; self learning; time constraints.
Mindset
– open or averse to change? Retirement
opportunities
Existence of arbitral centres – raises awareness; opportunities to network/ask questions and see it in practice.
Legislation – compliant with international “standards” or old and creaky.
Government attitudes – Ministry of Justice/Attorney General’s attitudes.
Factors which influence a court’s attitude to arbitration
Slide5Overall impressions from Africa:
Eagerness to change
.
Willingness to be “compliant” with international “standards
”.
Positive changes are happening.
Private sector way ahead of the Government – more engagement needed.
Factors which influence a court’s attitude to arbitration
Cont
----
Slide6A losing party who’s unhappy has several bites of the cherry to prevent an award from being given effect:
Internal arbitration rules – clarifications, corrections, additional awards.
Challenge of award in courts of the seat; and then rounds of appeals.
Resisting enforcement overseas – NYC
grounds or other; and then rounds of appeals.
Consequences of these procedures:Frustration by Claimant.Time delays – couple – many years.
Puts off Investors.
Criticism of the judiciary abroad
eg
. England where enforcement may be taking place.
Etc.
Enforcement – how difficult cant it be?
Slide7I want to focus on Article VI –
"Article VIAdjournment and Security
"If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V(1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security
.“
Enforcement under the New York Convention 1958
Slide8Number of important
African cases heard in the English Courts in past 20 years. Issues which come up:
Delays in local courts (deliberate and bonafide) where there are challenges to awards. This is sometimes made
worse by the local court rules permitting interlocutory applications, adjournments due to demands on judges, or in cases simple things like no power in the Court, judges being away for a conference etc. These are some of the
realities
on the ground.Questions as to whether challenges are bona fide or spurious to obstruct enforcement;
Deference to local courts/considerations of comity by the enforcing courts, how much patience should the
enforcing court
have;
Enforcement under the New York Convention
1958 (cont’d)
Slide9Public
policy considerations by local and enforcing courts and the different approaches. Egs Award size of a State's budget therefore against public policy.
Fraud and its implications;
Final and binding awards/double exequatur;Adjournment of enforcement and for how long, when there are local challenges pending in the seat of the arbitration
;
Provisions of security when adjourning enforcement; andPartial enforcement.Enforcement under the New York Convention 1958 (cont’d)
Slide10Some Cases:
Soleh Boneh International ltd –v- Government of the Republic of Uganda & National Housing Corp (Court of Appeal 1993
)
IPCO (Nigeria) Ltd –v- NNPC: six report judgments of the English Commercial Court and the Court of Appeal (2004-ongoing)
Continental
Transfert Technique Ltd –v- The Federal Government of Nigeria & Others (2010) Dowans Holding SA & another –v- Tanzania Electric Supply Co Ltd (2011) (First ICC Case held in Africa apparently)
Enforcement under the New York Convention 1958 (cont’d)
Slide11Difficulty in enforcement is not an “African problem”
Emerging markets generally more difficult: India, China, Russia, South America [Queen Mary’s School of International Arbitration and PWC Report: International Arbitration Corporate Attitudes and Practices]
Egs in England where enforcement stuck for over a decade. Mauritius’ efforts
Cruz City 1 Mauritius Holdings –v- Unitech Ltd (2014)
Other countries – Nigeria, Kenya etc.
Efforts in Africa to make enforcement easier