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Arbitration in Africa: Swithin J. Munyantwali, Uganda, part 1 of 2

Swithin J. Munyantwali, Counsel at Appleton Luff, continues our series, Arbitration in Africa.

In Part 1, Mr Munyantwali discusses his personal and professional background, including his current role. He also considers arbitral institutions and centres in Uganda. In Part 2, he examines arbitral procedure, court support for arbitration, and recognition and enforcement of awards in Uganda. He also examines investment treaty arbitration and challenges to arbitrators. Finally he offers advice for those who wish to start a career in arbitration in Uganda/Africa and discusses the difficulties for new arbitration practitioners or arbitrators.

Personal background

I am a Ugandan of dual nationality (UK citizenship) having been born in Edinburgh, Scotland; I am a licensed US lawyer. My wife Lyvia, also Ugandan, is a Canadian barrister and solicitor; we have three children (a boy and two twin girls).

The latter period of the turbulent political period in Uganda (which began in the early 70s and continued to the early 80s) coincided with my high school years so I began to think of educational options away from Uganda. Law was immediately attractive as a vehicle to bring about change in my country. Uganda and many developing countries (especially in Africa) have suffered the effects of “rule of law deficit”, affecting their economic development. Subsequently, I moved to the United States, pursuing a BSc in Criminal Justice (at St. Joseph’s University), as a pre-law major. It was during college that I confirmed my interest in pursuing law, seeing the impact law had on the way of life in the United States, and in the Northern Hemisphere in general.

I was admitted to Case Western Reserve Law School, where my favourite subjects included international trade (under Professor Sidney Picker) and international commercial arbitration (under well-known Nuremberg prosecutor, Professor Henry King). Both Professors King and Picker increased my interest in international law and arbitration respectively. Subsequently, and due to this interest, I served as a notes editor on the Journal of International and Comparative Law, further deepening my interest in international investment law. My deepened international law interest led to enrolment at Georgetown Law School to pursue a Masters in International and Comparative Law, with the eventual objective of bringing my academic experience to reforming legal and judicial systems in Africa.

Professional background and current role

Following this program, I briefly worked at a boutique law firm in Philadelphia covering white collar litigation, and subsequently joined the International Law Institute (ILI) as a staff attorney , where I worked on a range of development projects (broadly rule of law) from the Russian Federation, Caribbean, South America to Africa; the Institute, which has been in existence for over six decades, was the original international faculty at Georgetown Law School.

While at the Institute, a prominent course offered was on international commercial arbitration, which attracted a number of professionals from sub-Saharan Africa and around the developing world; I appreciated the investor interest of having neutral and transparent rules to adjudicate disputes (in light of inefficient and corrupt court systems prevailing in a number of jurisdictions in the Southern Hemisphere).

A key pillar in the Institute’s work is protection of investor interests globally. Arbitration plays a critical role in the protection of the investor, as it provides a predictable system for dispute resolution when deals go sour.

My interaction with investment arbitration did not follow practice or scholarship in the area, but following my selection to serve on an investment arbitration tribunal under the auspices of the International Chamber of Commerce (ICC) on an energy matter. I learnt a lot from this first panel, appreciating the power of this forum to bring justice in large investment projects. Since then, I have served on ICC and International Centre for Settlement of Investment Disputes (ICSID) (currently) arbitration panels as a co-arbitrator, where the disputes run into the hundreds of millions of dollars.

As a development lawyer for the last 24 years, ten of which I have served as an international banker (as a non-executive director), I appreciate the importance of a stable rule of law regime for investment to prosper. In Africa (where I currently reside), while there has been considerable progress in many rule of law systems, there is still substantial progress to be made (in legal education, court reform) before investors will subject themselves to the jurisdiction of local legal systems. Even where regional/national arbitration systems have been developed, there is still a preference (with the exception of the Cairo Regional Centre for International Arbitration (CRCICA), which was established by a close collaborator of ILI, the late Dr. Aboul Enein) to submit disputes to the well-known and established forums (such as the ICC, ICSID, London Court of International Arbitration (LCIA) and others); it is my sincere hope that regional arbitral forums develop the capacity and confidence to serve African investment disputes, which have been recently on the rise (as will be discussed below). Furthermore, I have noticed that I tend to be the only African on the arbitral tribunals on which I have sat, in a field that is dominated by senior jurists (mostly male) from Europe and the United States. This has led to a desire to increase the knowledge of African lawyers and related professionals in international arbitration, so as to balance panel representation of Africans, as well as women.

I co-founded and serve as Vice Chair of the International Law Institute African Centre for Legal Excellence (ILI-ACLE), an affiliate of the ILI. ILI-ACLE has been a success story in building the capacity of African institutions towards developing credible and stable legal infrastructure. This has been through court reforms, law drafting and training in various areas (prominent among which is international commercial arbitration). The arbitration course has been taught at ILI-ACLE for over 20 years. It has attracted participants from over 35 countries in sub-Saharan Africa. Through this course, we have deepened the knowledge of hundreds of regional lawyers, judges, academics .

On a typical day, ILI-ACLE is either carrying out technical assistance, training activity, or responding to requests from regional governments, or development partners to craft a customised solution to a legal infrastructure problem. Often we have received requests from the East African Court of Justice to carry out specialised arbitration training for its judges and senior administrative staff to prepare the court to adjudicate complex commercial disputes; in Lesotho, under funding from the Millennium Challenge Corporation, we established court annexed mediation, developed a commercial court (and its rules), established a small claims court, and trained judges and lawyers countrywide (with extensive programs in alternative dispute resolution (ADR)). On other days, I am handling a range of matters related to the operations of Barclays Bank in Uganda, where I serve as Chairman. I sit on various international boards, occasionally lecture, have business interests, and of course my family takes a good share of my time. I am also a member of a boutique international law firm, Appleton Luff, based in the US, Europe, Asia, and Africa; I lead the East African operations of the firm, where we serve a selected growing international clientele.

Arbitral institutions and centres in Uganda

The key arbitral institution in Uganda is the Centre for Arbitration and Dispute Resolution (CADER), which was established around 1998. CADER hears about 70 cases a year in areas such as construction, credit, intellectual property, and sale of goods. CADER has grown over the last decades and it is anticipated that, with increasing education efforts ensuring more knowledge in the field of ADR, CADER (and other similar centres in Africa) will continue to grow in prominence.

The Organization for Harmonization in Africa of Business Law (OHADA) has adopted a modified Uniform Act on arbitration law, revised Common Court of Justice and Arbitration (CCJA) Arbitration Rules, and a new Uniform Act on mediation. The reason ultimately is to promote ADR in the OHADA region. Like other regional centres vying to attract arbitral disputes, the CCJA would like to be the main centre for arbitration in the 17-member state OHADA area, and beyond. The expansion beyond state parties is significant. It provides that local governments and public establishments, and any legal entity governed by public law, may be party to arbitration. The new rules allow the CCJA to administer investment arbitration. Other significant reforms towards developing a best practice framework for arbitration have been incorporated, building on previous texts.

The key to success following these reforms will be the uniformity in adoption by local courts following clearly laid down practice, and transparency and efficiency in application, eventually leading to the confidence of litigants to subject to OHADA arbitration. A key consideration, beyond the introduction of a modern legal framework, is ensuring that there is extensive education of lawyers and judges in modern ADR practices; a key starting point is reforming legal education to ensure that law schools offer credible programs in ADR. Ultimately, the system is only as good as the knowledge of the system participants.

There also needs to be awareness that the OHADA is competing with emerging arbitral centres in the region, such as the Kigali and Mauritius (LCIA) Centres.

Appleton Luff Swithin Munyantwali

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