Africa’s dispute resolution landscape has long been dominated by litigation, but the use of alternative mechanisms such as arbitration and mediation is becoming more prevalent. South Africa, Kenya, Nigeria, Egypt and Rwanda all have established arbitration centres, with Cairo and Johannesburg considered the most popular arbitral seats on the continent, according to a 2020 survey run by the SOAS University of London.
Mediation is also starting to gain traction in countries such as Kenya, which recently introduced mandatory court-annexed mediation as part of its broader alternative dispute resolution framework. This gives the courts discretionary powers to send certain disputes to a mediator and will help to reduce backlogs in the court system.
Despite these moves, the growth of arbitration and mediation on the continent faces challenges. An Africa Legal poll posed to the continent’s legal community for London International Disputes Week found that 48% of the more than 100 respondents believe the biggest obstacle to resolving disputes through arbitration in Africa is inadequate legal enforcement, with parties often concerned that any arbitral awards will be ignored. Just over a fifth (22%) believe party resistance is the next biggest obstacle, with disputants often wanting to use arbitral seats and venues outside Africa. A further 16% cited a lack of qualified arbitrators, while 12% said local centres are typically underfunded.
Investor–state mining disputes commonly arise in Africa. Out of 37 global mining arbitration cases in 2021, just under half (15) involved African activities, according to international legal data provider Jus Mundi. A number of disputes on the continent have arisen from African states introducing new regulations to gain more control over mining projects and to pocket a bigger share of the profits, prompting investors to file for arbitration, Jus Mundi noted.
These disputes often end up being contested outside Africa, with London being the most popular seat for mining-related arbitration, according to Jus Mundi. Even when African disputes involve two African parties, the cases tend to be subject to either the International Chamber of Commerce (ICC) or London Court of International Arbitration (LCIA) rules, and arbitration takes place in centres such as Paris, London and Singapore.
African arbitrators say this limits their opportunities, stunting the development of the continent’s arbitration landscape. For this reason, African arbitrators are seeking closer collaboration among regional centres to increase appointment opportunities.
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