The eighth edition of the East Africa International Arbitration Conference, which was originally due to take place in Zanzibar, has now been re-organised as an entirely virtual event taking place between 26 to 28 August 2020.
The final day of the conference featured exciting content on the future of arbitration. After another round of speed networking where participants had the opportunity to engage in one-to-one conversations with other participants at random, the day began with a recap of day two’s events by Elodie Dulac (King & Spalding, Singapore, and member of EAIAC Committee). This was followed by keynote remarks from Hanningtone Amol (East Africa Law Society, Tanzania), who expressed the view that international arbitration is a key part of sustainable development in the region, and discussed the importance of government support for home grown institutions and expertise to unlock East Africa’s full potential in international arbitration.
In the second keynote address of the day, Slim Abdallah (President of the Zanzibar Law Society) then discussed arbitration in the state of Zanzibar in comparison to the rest of Tanzania in the second keynote address of the day. He spoke of the journey ahead for Zanzibar in terms of progressing a legal framework for arbitration, acknowledging the crucial role arbitration plays in settling investment and commercial disputes.
A lively discussion ensued on technology and innovation in the future of arbitration. This third session of the conference was moderated by Elizabeth Oger-Gross (White & Case, France). The topics under discussion are highly relevant to today’s world where there is a growing push to use virtual conference technology in arbitration hearings. The panel comprised Faith Macharia (Anjarwalla & Khanna, Kenya), Prof. Dr. Mohamed S. Adbel Wahab (Zulficar & Partners, Egypt), Dr. Fidele Masendo (Secretary General for the Kigali International Arbitration Centre, Rwanda) and Dipna Gunnoo (Head of the MCCI Arbitration and Mediation Center, Mauritius).
There was a consensus that COVID-19 had forced a shift in the conduct of arbitration and attitudes towards embracing technology. The noted benefits of virtual hearings included: costs savings, efficiency in navigating documents online, and time savings. However, the panel also highlighted concerns with virtual hearings, including in particular security and confidentiality; it was suggested that an arbitrator could issue a procedural order concerning cybersecurity provisions and the manner in which the hearing must be conducted to mitigate such concerns. Crucially, it was recognised that arbitrators need to master the technology involved, as parties will increasingly want to integrate technological solutions into the arbitral process.
From an African perspective, issues remain in terms of assimilating technology and platforms effectively, with the suggestion that arbitral institutions should engage technical support teams to guide parties through the process to combat this challenge. Nevertheless, the panel admitted that virtual hearings cannot, at the moment, fully replicate the nuances of a physical hearing. As experiences with virtual hearings increase, there was consensus that they will gain in popularity so long as concerns about that format are addressed, particularly surrounding security and integrity of witnesses.
The final session of the conference focussed on avoiding pitfalls in international arbitration. Kamal Shah (Stephenson Harwood, UK) moderated the highly engaging session.
Tafadzwa Pasipanodya (Foley Hoag, USA) commenced the session with a discussion of costs and damages assessment. She spoke about the importance of considering costs and damages from the outset. While there have been some reform initiatives, for example, consideration of the fair and equitable treatment standard of investor protection in the African Continental Free Trade Agreement, there is an overall lack of attention to reform with respect to the issue of damages.
Luisa Cetina (Anjarwalla & Khanna, Kenya) addressed the fallout from the COVID-19 pandemic in relation to contractual issues, particularly the reliance on force majeure as a basis for contractual non-performance. While the pandemic has led increasingly to innovative use of technology in arbitration, Ms Cetina considered that more needs to be done. From her experience, there is a greater sense of urgency from clients because, in the current climate, arbitration is considered to be too protracted and they find it increasingly challenging to justify engaging in the lengthy process. Consequently there has been intensified pressure towards settlement and re-negotiation of contractual terms. According to Ms Cetina, there seems to be a need for faster and simpler methods; arbitration centres must meet that demand. Some centres have done, for example, by providing for expedited procedures.
Jane Davies Evans (3 Verulam Buildings, UK) discussed techniques for successful cross-examination. She considered that the primary purpose of cross-examination is improving a client’s position rather than to damage that of the opponent, and that it is important to keep that in mind rather than attempting to take every opportunity to “twist the knife”. While every question is an opportunity to improve one’s case, it provides three opportunities for an opponent to do the same:
- If they give a good answer.
- Through re-direct.
- By piquing the tribunal’s interest in then asking a question that may be damaging to your client.
Another pitfall is when a cross-examiner fails to engage in the difficult questions, choosing to undermine an expert’s credibility by dealing only with the easy topics. That may be seen by a tribunal as wasting time. She considered that it was key to identifying the best path to getting the answer that one wants, and that this is even more critical in virtual hearings where one needs to be ever more selective in the questioning because, if the exchange were to become too convoluted, one could lose the tribunal’s interest.
Following a lively Q&A session between Mr Shah and the panellists, as well as some insightful questions from the audience, Ms Karanja wrapped up the session with remarks of thanks for all the participating speakers, institutions and sponsors.
Finally, the conference closed with the Africa Arbitration Awards 2020. In line with the conference’s thematic focus on disruption and innovation, the Innovation in Arbitration Award went to African Arbitration Academy. The winning Leading Service Provider of this year’s Conference is JMiles & Co, while the winning Leading Case Counsel Team went to Nigerian National Petroleum Company. Finally, as testament to the diverse talents of the continent, Madeline Kimei was voted the Young African Arbitrator of the Year (and will therefore participate in the inaugural Stephenson Harwood Mentorship Programme) while Ms Dorothy Ufot SAN was crowned African Arbitrator of the Year.
Thank you to Daniel Boon and Camille Brien, trainee solicitors at Stephenson Harwood, for their contributions to this post.