In a push to raise Atlanta’s profile as a location of choice for international arbitration, the Atlanta International Arbitration Society is looking toward Africa.
About 100 people are expected to attend a conference on African arbitration organized by the society, known as AtlAS. The event features speakers from seven countries in sub-Saharan Africa—Nigeria, Ghana, Cameroon, Kenya, Rwanda, Botswana and South Africa—plus China, India, Europe and the United States.
“The opportunity is great. There is an increasing amount of business between North America and Africa—and where there is business, there are disputes,” said Whit Engle, one of the conference’s organizers. Engle, an AtlAS board member, is an independent arbitrator at Engle ADR.
A major goal of the conference is to encourage African companies to bring their disputes to Atlanta, Engle said. “We see ourselves as a viable alternative to the existing options. We’ll give you a level playing field at a competitive cost with a high quality of dispute resolution.”
London and Paris are two top locations, or seats, for Africa-related disputes, Engle said, reflecting Africa’s colonial history. “The British and the French are all over Africa selling international arbitration services,” he said. But London and Paris are also two of the most expensive cities in the world, he added.
Parties generally choose arbitration for commercial contract disputes when they don’t want to use local courts. The choice of a seat is important, because the laws of the country where the arbitration is located govern an award’s enforcement and local courts may be called on to adjudicate issues arising from the arbitration.
In choosing a seat, Engle said, parties seek countries and states with reliable local courts and a supportive legal system—in other words, a fair venue where they can be confident that the arbitral award will be enforced. The safety of the location, ease of travel, cost and local facilities are also factors.
There are fewer international arbitrations involving African parties than for other regions, but the number is increasing as cross-border trade with African countries expands. Because the disputes often involve natural resources and infrastructure projects, there can be a considerable amount at stake, according to a report from the International Chamber of Commerce (ICC), whose International Court of Arbitration handles one of the highest volumes of international arbitrations worldwide.
Most African arbitrations are still seated outside Africa. “Most contracts choose London, Paris or New York as the venues for arbitration,” Africa News quoted Chief Bayo Ojo, the chairman of the International Centre for Arbitration and Mediation in Nigeria, as saying at a June roundtable on African arbitration in Cote D’Ivoire. “Even when domestic venues are chosen, which is rarely, Western rules and arbitrators are almost always chosen. This does little to promote the African cities as arbitral venues.” Former Kenyan judge Edward Torgbor, who is now an arbitrator, said at a June ICC conference in Johannesburg that 99 percent of the parties in African disputes are represented by lawyers and law firms based in the U.K., France and the U.S.
However, many African countries are developing their own arbitral capabilities. The ICC reported that it had proceedings seated in eight countries in sub-Saharan Africa last year and African arbitral institutes are springing up.
The largest ones, Engle said, are the Common Court of Justice and Arbitration in Cote D’Ivoire, the Lagos Court of Arbitration in Nigeria, the Arbitration Foundation of South Africa, headquartered in Johannesburg, and the Kigali International Arbitration Centre in Rwanda, which launched in May 2012. On the East coast, the Law Society of Kenya is organizing an International Arbitration Center in Nairobi.
Cairo is the arbitration center for North Africa, where the Cairo Regional Centre for International Commercial Arbitration has operated since 1979. The island nation of Mauritius, off the Southeast coast of Africa, also has been positioning itself as an arbitral center for African disputes, promoting its status as a neutral venue, Engle said. The country in 2011 opened the Mauritius International Court of Arbitration in partnership with the London Court of International Arbitration.
There are two kinds of international arbitrations: investor treaty disputes between foreign investors and states, which are handled by the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), and contract disputes, which are handled by commercial arbitral institutes such as the ICC. There is no legal seat for ICSID cases, which can be appealed only to ICSID, and awards are immediately enforceable among the 150 countries participating in the ICSID Convention.
Cases involving African parties are increasing for both types.
Disputes involving sub-Saharan African countries make up 16 percent of all ICSID cases since the institute’s formation in 1966—but 20 percent of cases filed in fiscal year 2014. Cases from sub-Saharan Africa, North Africa and the Middle East made up 35 percent of ICSID’s caseload last year, compared to 27 percent historically.
The ICC reported an overall rise last year in cases involving state-owned companies, with 86 cases filed compared to 75 in 2012. The largest proportion of those—35 percent—involved parties in North and sub-Saharan Africa.
AtlAS’s African arbitration conference is part of Africa Atlanta 2014, a yearlong series of cultural and business events organized by Georgia Tech’s Ivan Allen College of Liberal Arts and the Belgian consulate in Atlanta. It will be followed on Nov. 5 and Nov. 6 by a conference organized by the U.S. Department of Commerce for companies interested in finding new markets in sub-Saharan Africa. Both are taking place at the Marriott Buckhead.
Several local law firms are sponsoring the African arbitration conference: Arnall Golden Gregory, Alston & Bird, King & Spalding, Kilpatrick Townsend & Stockton, Womble Carlyle, Thompson Hine and Miller & Martin. The North American branch of the Chartered Institute of Arbitrators, JAMS and the Metro Atlanta Chamber are also sponsors.
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