Between 8 and 11 May 2016, the 23rd Congress of the International Council for Commercial Arbitration (ICCA) will be held in Mauritius, the first time ICCA has held its bi-annual Congress in Africa. The location and theme of the Congress, as well as its VIP speakers, not only reflect the increased importance of international arbitration, both to Africa and the wider business community, but also the need for continued improvement. Will the 23rd ICCA Congress make a serious contribution towards that progress?
The ICCA’s decision to hold the Congress in Mauritius reflects the country’s concerted efforts to position itself as a major centre for international arbitration in Africa. Mauritius has done so through wholesale reform, updating its legislation (enacting the International Arbitration Act 2008), establishing a new arbitral institution (in a joint venture with the London Court of International Arbitration (LCIA)) and creating a dedicated panel of specialist arbitration judges within its judiciary, which hears all arbitration-related cases before the Mauritian courts. Mauritius’ push was also enhanced in September 2010, when the Permanent Court of Arbitration (PCA) opened its first overseas office in Mauritius.
The increased importance of international arbitration
Whilst Mauritius has made these moves to increase its attraction as an international arbitration centre, international arbitration has become a more popular dispute resolution option across Africa as a whole. The number of Africa-related arbitrations administered by the International Chamber of Commerce (ICC) and the LCIA has grown considerably between 2005 and 2014, more than doubling in the case of the ICC. Africa-related disputes now account for nearly 10% of all arbitrations administered by the LCIA; the number of Africa-related arbitrations it administered ten years ago was in single figures. However, there has been no obvious corresponding increase in the number of African arbitration practitioners, with the majority of work still undertaken by counsel based outside the continent. The 23rd ICCA Congress seeks to play a part in addressing this. To cater for the interest in international arbitration amongst African practitioners, the ICCA is offering a 50% discount off the usual ICCA Congress fee to delegates from African nations. This Congress is on course to have more African delegates than any previous ICCA Congress.
The growth of Africa-related arbitrations in the last decade may be, at least in part, the result of the increasing number of international arbitrations globally, as the system of international arbitration further strengthens its position as the preferred dispute resolution mechanism for international matters. The increased importance of international arbitration to the wider business and international community is demonstrated by the VIPs due to speak at the Congress: both Dr Mohamed ElBaradei (Nobel Peace Prize Laureate and former director general of the International Atomic Energy Agency) and UN Secretary General Ban Ki-moon will be speaking. It will be the first time that a UN Secretary General has spoken at an ICCA Congress.
International arbitration and the development of the rule of law
The theme of the Congress is the relationship between international arbitration and the development of the rule of law. The choice is apt. Whilst there have been significant improvements in the last decade, African practitioners and commentators, as well as arbitration users who act regularly in Africa-related arbitrations, know that there is still more that must be done to make the system of international arbitration fully compliant with the principles of the rule of law: from the institutions to arbitrators and judges of supervisory courts.
For example, delays in the court systems of some jurisdictions continue to frustrate the expeditious resolution of disputes and, in some cases, allow justice to be avoided. In IPCO (Nigeria) Limited v Nigerian National Petroleum Corporation, the English Court of Appeal noted that the Nigerian courts could take a further 20 to 30 years (from 2013) to resolve an application to set aside an arbitral award (on the grounds that the award had been obtained by fraud). The original set aside application had been made in November 2004 (on grounds other than fraud) before the Nigerian courts. The total time taken to resolve the set aside applications, from the time the first set aside application was brought, might therefore be 40 years. Whilst this is an extreme example, it serves to illustrate that systemic delay remains a major problem with the court systems of some African jurisdictions. For international parties, such delays undermine the attractiveness of arbitrating their disputes in Africa. It is also difficult to reconcile such delays with the commonly acknowledged principle of the rule of law that disputes must be resolved without unreasonable delay.
Similarly, stories of corruption within a jurisdiction’s legal system are not unknown to practitioners across Africa. Even when great improvements are made, as they certainly have been, the lingering perception of corruption and inefficiency adversely affects the prospects of the development of international arbitration in Africa.
Conversely, international arbitration itself is not above concerns about the rule of law. For example, the confidentiality and privacy of international arbitration, cited by its users and by practitioners as one of its key benefits, have been criticised as antithetical to the rule of law, especially where vital national resources are in dispute. How should tribunals ensure that they not only uphold the rule of law, but are seen to be doing so? How can international arbitration be properly scrutinised, and be perceived to comply with the rule of law, if it is shrouded in secrecy? And how can the need for transparency be reconciled with confidentiality?
These are just some of the issues that will be debated at the ICCA Congress. With the calibre of speakers who will be contributing to the discussions, it seems likely that some meaningful progress will be made, with concrete proposals identified to promote the rule of law in international arbitration.