SOAS arbitration study shows strong support for an African commercial court

The ‘Arbitration in Africa’ survey (22 pages / 12.7MB PDF), the third published since 2018, examined the impacts on arbitration of the global pandemic, climate change, the African Continental Free Trade Agreement (AfCFTA) and the increasing number of construction and infrastructure projects on the continent. It was co-sponsored by international law firm Pinsent Masons and Nigerian dispute boutique Broderick Bozimo & Co.

Most of the nearly 200 respondents said they believe that there will be an increase in commercial disputes resulting from the AfCFTA – a free trade area established in 2018 that encompasses most of Africa – and that those disputes should be arbitrated. The SOAS report identified strong support for an African commercial court among survey respondents, the majority of whom also noted an exponential increase in the number and value of construction-related projects across Africa.

While respondents confirmed that arbitration was usually the preferred resolution mechanism for construction disputes, they told researchers that there was also an increase in references to dispute boards and mediation. They also noted that the laws of African states are primarily chosen as the governing law of such contracts. Views were divided on the prevalence of African technical experts as witnesses in related arbitrations arising from the transactions.

At the same time, the survey found that participants involved in arbitration in Africa largely continued their arbitrations during the Covid-19 pandemic, using virtual communications and hearings. Respondents told researchers that they believe most of the changes to their practices necessitated by the pandemic will become permanent.

Most respondents also said they were already taking steps towards climate change mitigation and adaptation, including switching to cleaner energy options, less travel, less use of paper and greater reliance on technology. Some respondents said, however, that they did not see the relevance of the climate change discourse to their practice since, as climate change affects their way of life, their practice will be affected by the changes anyway.

Rob Wilkins of Pinsent Masons said the firm was proud to co-sponsor the report, which “provided much-needed African perspective” on the impact of key issues on arbitral practice. “There are undoubtedly issues facing African practitioners and users of arbitration and the playing field remains far from level,” Wilkins said.

He added: “However, it is hoped that the modernisation of infrastructure and the move from in-person to virtual training, conferences and working driven by the pandemic will enable greater access for African practitioners to the arbitration process.”

Dr Emilia Onyema, professor of international commercial law at SOAS, said: “It has been very rewarding working on our third SOAS Arbitration in Africa survey report with very supportive teams at Pinsent Masons and Broderick Bozimo as well as our support law firms.” She added that the report was being translated into French, Arabic and Portuguese “to ensure inclusivity of African arbitration practitioners”.

“We hope you will use and refer to our findings, which continue to contribute our 'African voices' to the development of global arbitral jurisprudence and practice,” Onyema added.