Judge John Hlope submitted a report in which he concluded that arbitration was inimical to judicial transformation in South Africa
At a conference held in Johannesburg this year under the auspices of the International Chamber of Commerce International Court of Arbitration (ICC) and the Fédération Internationale des Ingénieurs-Conseils, Judge Edward Torgbor, a former judge of the high court of Kenya, now practising as a specialist arbitrator, presented a paper on Opening up International Arbitration in Africa.
Torgbor said that a speaker at a recent seminar in London had pointed out that the parties in 99% of all African disputes are represented by lawyers and law firms based in the United Kingdom, the United States and France, and that the future of African arbitration is in Europe.
Torgbor spoke of the prejudice and bias against Africa stemming from the negative image of the continent as hopeless, forever afflicted by ignorance, poverty and want.
He suggested that the negative branding is so potent that the mere mention of Africa calls up images of subservience, incompetence and failure, such that any positive development is credited to the controlling involvement of international donors, expatriates and expert advisers.
In his paper, Torgbor reaches the conclusion that foreign arbitrators and practitioners monopolise, or at any rate dominate, arbitrations in their own states to the virtual exclusion of Africans and that Africans themselves transfer their disputes abroad and appoint foreigners to resolve them at enormous cost and expense.
Torgbor indicates that the time has come for Africans to wake up to the realisation that they remain perennial outsiders by choice. He makes a number of specific proposals, which are broadly intended to change the African mind-set of inferiority and to build confidence by mounting vigorous awareness campaigns, both at home and abroad, to promote and showcase African arbitrators and practitioners.
Torgbor’s views are important in the broader African context, but should also be considered in the narrower South African context.
Nine years ago, the judge president of the Cape provincial division of the high court, Judge John Hlophe, submitted a report in which he concluded that arbitration was inimical to judicial transformation in South Africa. This followed the Law Commission’s report in 2001 in which reference was made to the danger of a perception, particularly among black lawyers, that some white members of the legal profession see arbitration as a form of “privatised litigation”, enabling them and their clients to avoid the courts.
Notwithstanding Hlophe’s report, there has been strong support for arbitration from the Supreme Court of Appeal and the Constitutional Court. These courts have confirmed that South Africa will continue to show a high degree of deference to arbitration awards and that there will be minimal judicial intervention when reviewing international commercial awards.
South Africa is well placed to play a leading role as an important regional arbitration centre. We have a number of experienced arbitrators, including retired judges, eminent senior counsel and senior attorneys.
We have strong local and regional arbitration organisations, including the Arbitration Foundation of Southern Africa and the Association of Arbitrators. We have strong connections with international arbitration organisations, including the ICC, and experience of arbitration conducted under the auspices of those organisations.
The concerns raised by Hlophe and the Law Commission have changed somewhat since then, particularly in the context of international arbitration. We can now also look forward to a new International Arbitration Act, (still to be enacted), which will adopt the internationally recognised United Nations Commission on International Trade Law, and signal a new dawn for arbitration in South Africa.
It must be recognised that the parties to international commercial disputes are from different countries and that in most cases they will not agree to submit their disputes to arbitration in each other’s countries. One of the major advantages of arbitration is the neutrality of both the arbitrator and the venue.
Many disputes emanating from Africa are submitted to arbitration in nonAfrican venues by nonAfrican arbitrators because of the perception, somehow, that to be neutral it has to be outside of Africa.
However, there are 54 countries in Africa and increasingly there are opportunities for disputes emanating from African countries to be dealt with in neutral regional arbitration centres. For example, in a commercial dispute between parties in Namibia and Botswana, the parties may not be prepared to agree to arbitration in either country, but may find it more convenient and less expensive to submit the dispute to arbitration in South Africa rather than Paris, London or Geneva.
The major international arbitration organisations do not impose European arbitrators or European venues on parties to disputes emanating from Africa, or anywhere else. Parties are free to agree on the identity of the arbitrator and on the arbitration venue.
Where the parties are African and the dispute emanates from Africa, they can agree on the appointment of an African arbitrator and an African venue in accordance with the rules of a recognised international organisation such as the ICC, or, where appropriate, a regional arbitration organisation such as the Arbitration Foundation of Southern Africa, the Association of Arbitrators or Africa ADR.
Africa is no longer the hopeless continent. We are seeing new self-confidence, growth and assertiveness, and this new African spirit is increasingly evident in any discussion of arbitration in Africa.
Once we have a new International Arbitration Act there is no reason why South Africa should not become the leading Southern African regional arbitration centre. This does not mean that the role of international arbitration organisations will become less important. On the contrary, these organisations, with their wealth of experience, expertise and global reach should continue to play an important role.
Torgbor sees the pervasive apathy of the African legal profession to international arbitration as a major impediment to African participation in international arbitration.
His message is powerful and must be heeded. This is the time for energetic confidence-building in African arbitration, instead of the defeatist recycling of old prejudices. The opportunity must not be lost. The major international arbitration organisations will always play an important role, but this does not mean that the future of African arbitration is in Europe.
Now is the time for Africa to be more visible, confident and assertive in the world of arbitration. If we meet the challenge, disputes emanating from Africa may continue to be submitted to arbitration under the auspices of international arbitration organisations, but should increasingly be heard in Africa by African arbitrators.