The 23rd International Council for Commercial Arbitration (ICCA) Congress was recently held in Mauritius, the first time ICCA has held its bi-annual Congress in Africa. More than 800 delegates attended, with more than a third of delegates coming from African countries. The theme of the Congress was the interaction between international arbitration and the development of the rule of law. Whilst this was said to be an ICCA Congress “in Africa, not only on Africa”, there was naturally a focus on issues relating to Africa.
Delegates heard from several eminent speakers, including UN Secretary-General Ban Ki-Moon and Nobel Peace Prize laureate Mohammed ElBaradei.
Ban emphasised the role of the UN in developing international arbitration. He reminded delegates that the UN’s founding charter expressly refers to arbitration as a peaceful means of settling state-to-state disputes. However, he said that the role of arbitration was wider than this, as it forms a key part of the global network of trade and the peaceful resolution of disputes, especially disputes involving states. He also stressed the role that UNCITRAL played in commercial arbitration by developing the UNCITRAL Model Law.
ElBaradei’s opening address touched on similar themes. He acknowledged that the adherence to the Rule of Law generally was in an “appalling” state, having failed to prevent widespread war and tyranny. ElBaradei drew a line from this lack of adherence to the rule of law to the “shadow” cast over investment treaty arbitration by perceived deficiencies in legitimacy of the process, and its effect on relationships between investors, principally from the developed world, and respondent states, most of which are developing countries. He proposed significant reforms, and emphasised the importance of collective action to improve international arbitration, the rule of law and the interaction between them. He reminded delegates that while collective action was inevitably slower than unilateral action, the former would stand the test of time far better than the latter.
A theme picked up by Ban, ElBaradei, Judge Abdulqawi Yusuf and other speakers was the issue of African engagement with the entire process of international arbitration. Judge Yusuf in particular referred to the lack of African arbitrators and paucity of arbitrations seated in Africa. Despite the fact that arbitration had been used in many African societies for centuries, the current situation resulted in Africans seeing international arbitration as an alien system imposed from outside, in which Africans were at most passive users and not active participants. Perceptions play a vital role: all the keynote speakers believed that greater transparency would facilitate improved African engagement with international arbitration, and avoid criticisms (particularly of investor-state arbitration) that disputes about vital natural resources were being determined behind closed doors.
Conversely, the wider world often perceives that it would be impossible to conduct an effective arbitration seated in Africa, due to corruption, judicial inefficiency and logistical difficulties. Judge Yusuf stressed that the 54 African nations are very diverse and that this uniform perception was far from true. He stressed that holding African-related arbitrations in Africa would go a long way towards increasing African engagement.
The Congress programme featured the usual programme of high-profile speakers to be found at ICCA Congresses, many of them involved as counsel or arbitrators in the ground-breaking cases which provided the material for discussion at the Congress.
The panels and speakers were too numerous to reflect here, but amongst several striking panels was a panel featuring Claus von Wobeser (a tribunal member in the Metal-Tech arbitration) on “the Corruption Defence”. The panel (which also included Domitille Baizeau and Dr Abdulhay Sayed) discussed in particular the question of whether, and to what extent, a tribunal should raise and investigate a suspicion of corruption if it did not form part of the positive case of a party. The presentations suggested that the approach of tribunals to this issue will continue to evolve and practitioners involved in such cases will have the opportunity to shape the law and practice of arbitration.
Arbitration in Africa
The final day of the Congress saw a panel session entitled ‘Spotlight on Africa: Perspective on Arbitration’, focusing on challenges facing international arbitration in Africa. Many of the panellists picked up on the issues highlighted by the keynote speakers. For example, the issue of judicial integrity (and mistrust of international arbitration) were debated, as well as the need to promote both better arbitration legislation and better implementation of the New York Convention by African judges. Some panellists felt that Africa as a whole had fallen too far behind the international standard in adopting the New York Convention and implementing it.
Other panellists emphasised that Africa as a whole had an abundance of arbitration talent, as counsel and as arbitrators, but that it was untapped. This is partly due to unawareness that the talent exists, not least because the size and diversity of the continent hinders the flow of such knowledge. Solutions that were debated included encouraging African parties to nominate African arbitrators and adopting arbitration ‘scouting’ to identify talent.
Other panellists emphasised that African disputes lawyers were familiar with arbitration, but that engagement needed to be improved amongst African contract “negotiators”, who too often are unfamiliar with arbitration and unaware that options exist to arbitrate future disputes in Africa.
Of course, the Congress also featured a busy social component and opportunities to enjoy Mauritius’ sights. This included a reception at an historic sugar mill and a gala dinner hosted in the grounds of the Château de Labourdonnais, a nineteenth century manor house, which featured an opera recital by renowned tenor Michael Fabiano. The smooth running of the Congress and the quality of the venues were testament to the high standards or organisation available in Africa. It is hoped that the Congress will provide a platform to further develop international arbitration across the continent.