REUTERS | Loren Elliott

Eighth East Africa International Arbitration Conference: day two report

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 report for day one can be found here.

After opening remarks by Agnes Gitau (GBS Africa), the day commenced with keynote remarks from Stephen Karangizi (Africa Legal Support Facility, Côte d’Ivoire), who highlighted the challenges faced by arbitrators in Africa, identifying the importance of enhancing dispute resolution settlement mechanisms, building on the capacity and visibility of African practitioners, and supporting national institutions. Tajelsir Mohammed (Advocate General of Sudan) then shared how Sudan has grown and is working to promote arbitration. Attendees were then treated to a special address by HE Vincent Emanuel Angelin Meriton (Vice President, Republic of Seychelles). His Excellency discussed how the Seychelles has worked with Mauritius on developing exclusive economic zones and extending continental shelves, providing a model for successful collaboration between African countries.

The first session, moderated by Evans Monari (Bowmans, Kenya), concerned emerging areas in African disputes. The panellists comprised Juliet Mazera (MMC Asafo, Kenya), Osama Ombada (Aztan Law firm, Sudan), Jodie Reindorf (Hogan Lovells, UAE) and James Ngotho Kariuki (DLA Piper Africa (IKM Advocates), Kenya). Ms Mazera presented a snapshot of recent developments in public-private partnerships (PPPs) in East Africa. She provided an overview of the key features of PPPs, noting that most East African jurisdictions have dedicated PPP laws (for example, Kenya and Uganda), which is unsurprising given the significant value of PPP projects in the region.

Mr Ombada discussed trends in African energy and natural resources disputes, painting a fascinating picture of the development of Sudan’s petroleum industry and considering two major cases on the issue. The first case was an ICC arbitration, seated in London, relating to the construction of a pipeline, while the second was an ICSID arbitration between Sudapet and the Republic of South Sudan.

Ms Reindorf then reviewed developments in Africa’s Islamic investment and finance. Drawing on her experience working in the UAE, Ms Reindorf discussed the uniqueness of Islamic finance dispute resolution, including how amicable resolution of disputes is deeply entrenched in such circumstances, leading frequently to parties starting off with a willingness to attempt settlement, as well as a preference for arbitration over litigation.

Finally, Mr Kariuki examined recent trends regarding bilateral investment treaties and investment arbitration in Africa. Referring to some interesting ICSID statistics, Mr Kariuki discussed African parties’ involvement in investment arbitration, observing that there is still a notable under-representation of African arbitrators in the global arena, before sharing his thoughts on modern BITs and the “Africanisation” of investment arbitration.

The first breakout session related to the increasingly important topic of diversity in arbitration and was moderated by Milly Jalega Odari (DLA Piper Africa (IKM Advocates), Kenya), who was joined by panellists Amani Khalifa (Freshfields Bruckhaus Deringer, UAE) and Dr Emilia Onyema (SOAS-University of London). Ms Khalifa introduced the Equal Representation in Arbitration Pledge, which strives to improve the profile and representation of women in arbitration and to increase the number of appointments of women as arbitrators on an equal opportunity basis. She emphasised that a lack of diversity could lead to unconscious bias, conflicts of interest and procedural inefficiencies. Dr Onyema discussed The African Promise, which is modelled on the ERA Pledge and seeks to tackle the under-representation of Africans as counsel and arbitrators, and challenge perceptions. Alongside Dr Onyema, The African Promise was co-published by Kamal Shah (Stephenson Harwood) and Dr Stuart Dutson (Simmons & Simmons).

The second breakout session was moderated by Ben Sanderson (DLA Piper, UK). The panellists, Dorothy Ufot (Dorothy Ufot & Co, Nigeria) and Duncan Bagshaw (Howard Kennedy, UK) spoke on fraud and corruption in arbitration. Mr Sanderson set the scene by introducing the different approaches taken in commercial and investment arbitration, with corruption being treated as a merits issue in the former and frequently a jurisdictional issue in the latter. Ms Ufot presented on corruption in investment arbitration, drawing on the renowned case of World Duty Free v Kenya, in which Kenya successfully mounted a jurisdictional challenge. She provided valuable insights into the lessons learnt from the case, including the issue of whether it was fair to leave the investor with no remedy when the state was able to expropriate the relevant investment with impunity, as well as the broader question of whether tribunals in treaty cases have the power and obligation to investigate allegations of corruption on their own volition. Mr Bagshaw followed by sharing his experience as counsel in commercial arbitration cases where there have been allegations of corruption, noting that, unlike in investment arbitration, tribunals do not usually take the initiative to raise such issues. Notably, he also drew the audience’s attention to a study published by the Basel Institute of Governance on Corruption and Money Laundering in International Arbitration.

In the second plenary session, moderated by Boason Omofaye (Frontier Africa Reports, Nigeria), experts in domestic and international trade dealt with the topic of disruption in Africa’s investment and trade flows. The panel comprised Rose Ronoh (Kenya Trade Network Agency, Kenya), Juvenal Shiundu (Kenya National Shipping Line Limited), Silver Ojakol (AfCFTA Secretariat), Philippe Michaud (Special Advisor to the Vice President, Seychelles) and Leyou Tameru (I-Arb Africa, Ethiopia).

The panel discussed trade dispute settlement at the WTO and its impact on Africa’s trade development and the AfCFTA Protocols on Trade in Goods, Services and Settlement of Disputes. The value of the WTO’s function in providing predictability, reliability and transparency for trade was noted, as it ensures a level playing field between countries, providing special differential treatment and financial aid for developing countries. The panel expressed the need for dispute resolution mechanisms to be functional so as not to pose a systematic problem to trade. It further shared views on how inter-Africa trade needs to be promoted, and how countries should support one another’s capacity for production, as well as the concept of blue economy and holistic frameworks to create an integrated maritime strategy.

Thus concluded the second day of the conference, with participants actively engaging with the innovative sessions through the virtual chat, demonstrating the same enthusiasm and support as on day one.

Thank you to Daniel Boon and Camille Brien, trainee solicitors at Stephenson Harwood, for their contributions to this post.

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