The SOAS Arbitration in Africa Survey report published earlier this year has sought to compile data to test the perception, based on some anecdotal evidence, that African arbitration practitioners are under-represented in arbitrations relating to the Africa region. The survey gathered data from 191 African arbitration practitioners on their participation in domestic and international arbitration over the period 2012-2017.
Before looking at the views expressed by survey participants, it is helpful to examine the demographics of the survey population. Over 60% of the survey participants were from Nigeria. While Nigeria is one of the largest economies in Africa, the fact that so many participants are from this one jurisdiction does mean that caution must be exercised in applying the results more broadly across the Africa region, which is made up of 54 different countries. Although the survey was made available in French, Arabic and English, there were fewer than 5% of respondents from Francophone African countries and fewer than 3% from North Africa.
The results of the survey are also illustrative of the fact that there is a large concentration of arbitration practitioners in Nigeria compared with other African jurisdictions. An interesting statistic highlighted by the survey is that there are 1,250 members of the Charter Institute of Arbitrators in Nigeria, which represents 51.3% of all its members in Africa. This is followed by Kenya, South Africa and Egypt with 637, 116 and 104 members respectively.
Given the high level of membership of the Chartered Institute of Arbitrators, it is unsurprising that 81.7% of respondents indicated they had formal training in arbitration (72% from the Chartered Institute of Arbitrators). This reinforces that any perception that African arbitrators do not have expertise in arbitration is obviously wrong and unsupported by empirical data.
However, when it comes to experience of arbitration the picture is more mixed, with approximately 40% of respondents stating that they had acted as counsel in an international arbitration and approximately 60% of respondents saying that they had acted as counsel in a domestic arbitration during the entire five year reference period.
When it came to arbitrator appointments, around 18% of respondents had sat as an arbitrator in an international arbitration and around 41% of respondents had sat as an arbitrator in a domestic arbitration in the last five years. When it comes to sitting as arbitrator in over ten disputes over the five year period, 10% of those surveyed had sat in over ten domestic disputes and 5% of those surveyed had sat in over ten international arbitrations.
Recent statistics from the LCIA and ICC indicate that there is a gap between the proportion of African-related disputes and the proportion of African arbitrators. The ICC’s 2017 statistics indicate that 9% of the parties to its cases were African and 3.9% of African arbitrators were appointed. The LCIA’s 2017 statistics indicate that 5.2% of the parties to its cases were African and 2.7% of African arbitrators were appointed. Organisations such as Africa Arbitration Association (AfAA), African International Legal Awareness (AILA), Africa Arbitration, the Association of Young Arbitrators Nigeria (AYA), International Lawyers for Africa (ILFA) and many others are seeking to close this gap by promoting the leading, and up and coming, African arbitrators. They are providing platforms for African arbitration practitioners to engage and build profiles in the international arbitration community.
The SOAS Arbitration in Africa Survey report also highlighted the continued weakness in some African jurisdictions of domestic arbitration laws and the lack of support for arbitration within the local judiciary. There have been many initiatives in recent years to modernise arbitration laws in various African jurisdictions and to provide training on arbitration to local judges. The survey results indicated that 55% of respondents believed their national arbitration laws were effective and 56% of respondents believed there was effective judicial support for arbitration in their jurisdiction. Having effective arbitration laws and an arbitration-friendly judiciary are key elements to becoming a popular seat for international arbitrations. Accordingly, while significant progress has been made, there is still some way to travel.
