What does the future hold for African Arbitration?
Over the past three decades, arbitration practice has established itself as a firm, efficient and effective dispute resolution alternative when compared to litigation. As the ICC International Court of Arbitration, Africa, holds its 6th Annual conference, BusinessDay’s Onyinye Ukegbu sits with Prof. Gbolahan Elias, SAN, Partner, G. Elias & Co, and Chairman, ICC International Court of Arbitration Africa, Conference Planning Committee to discuss conference planning, inclusion and diversity in African arbitration and the future of arbitration in Africa. Below are excerpts.
Planning a conference of this magnitude is no easy feat. How are preparations coming along?
The preparations have been coming along very well. I must thank my colleagues on the Planning Committee for the outstanding dedication and imagination that they have brought to bear on their work and our 30+ sponsors for their support. The session subjects are topical, there is a potent mix of confirmed speakers, both established and emerging, from Nigeria, throughout Africa and all over the world. We are set to deliver an unusually satisfying professional experience for attendees at the conference next week.
Why the theme for this year’s conference?
Arbitration in Africa has made tremendous progress in the past three decades or so, but there is still much work to do to take it to the even greater heights that it can and should reach. The points of the theme are (a) to remind us of what has been achieved thus far, (b) to revisit it to understand better how to preserve those achievements, and (c) to consider how best to build for the future on what Africa now has. The short statement of the theme for this year — “African Arbitration: Consolidation and Transformation” — tries to reflect these points succinctly.
The 3-day conference which begins on June 1, 2022, has about 7 panel sessions daily. How do they work together to produce a holistic conversation on the theme?
Every session in the conference will bear out or shed light on at least a part of the general theme and has a title that is in effect a sub-theme under that general theme. The theme seeks to explore the various workings and interrelationships amongst the various arbitration institutions in Africa while also assessing the changes and development that arbitration has undergone in Africa and what the future holds for arbitration in Africa. Therefore, all discussions in each session are geared towards an examination of various components of the theme. The panel sessions will examine persistent subjects amongst other things the development of, and, challenges and future opportunities in African Arbitration, and how arbitral institutions in Africa can collaborate to build capacity on the continent. Focus will be given to the perspectives of in-house counsel, and developments in the African mining, energy, technology and construction sectors. There will also be sessions on issues of the moment such as the enforcement of arbitral awards, “querilla tactics”, damages, the significance of the plurality of systems of law and language in Africa, and ideas for the “next generation”.
What kind of engagement can we expect from the lineup of speakers and panellists at this conference?
The sessions are set to deliver lively and interactive engagement both among those on the stage and between those on the stage and the rest of the audience. Nearly all of the speakers will sit on a one-hour panel with four members and a moderator each. Every one of them will have an audience question-and-answer session of at least 15 minutes. The speakers have been carefully selected. Each speaker has the practical knowledge and exposure needed to engage the audience in expounding the theme of the conference. The speakers cut across various sectors, industries, and countries in Africa, thereby promising a rich, engaging, and thought-provoking discussion. While the conference sessions will be delivered in the English language, there will be two sessions in French leading to a more effective engagement with the French audience. The breakout sessions will also offer attendees opportunities to brainstorm, discuss, participate actively, and reflect in a more intimate and specialized setting on the various objectives of the conference theme. The Conference will end with a debate session on the controversial issue of double hatting in arbitration.
Read also: African governments making AfCFTA survival difficult
The session, “Collaboration, Inclusion and Representation in African Arbitration: Bridging the Anglo-Franco African divide” sounds interesting. In light of AfCFTA, how would resolutions on this topic contribute to its success?
One should not offer either speculation or spoilers. Your very good question invites me to do both! Let us wait to attend the event either virtually or physically and actually hear from the speakers. Suffice it, for now, to say that when a representative range of high-powered speakers pronounces on a fresh topic that is significant across borders at a high-profile event, decision-makers do, and should, listen carefully. AfCFTA seeks inclusiveness and collaboration across Africa just as the ICC Africa itself does. The aims of the two are inherently aligned and mutually supportive.
The essence of AfCFTA is to deepen economic integration in Africa through the creation of a single market for goods and services which will no doubt reshape Africa’s economy. The implementation and operation of AfCFTA while laudable are expected to be accompanied by huge numbers of commercial disputes. Many of these disputes would be resolved by arbitration especially due to the cross-border nature of these disputes.
Considering this, there is no better time than now to examine how the “Anglo-Franco African Divide” in arbitration can be bridged for effective collaboration, inclusion and representation. The difference in the legal system in Anglophone, Lusophone and Francophone countries in Africa also manifests in the arbitration procedures. Therefore, if AfCFTA would be a success, then stakeholders must discuss and proffer solutions on how the diverse legal systems can be effectively combined to improve the administration of arbitral justice in resolving disputes.
You mentioned that many disputes from AfCFTA will be resolved by arbitration due to its cross-border nature. How did international arbitration rise to become the dispute resolution opton of choice for cross-border disputes?
The attractions of arbitration are not hard to see. Relative to regular court litigation, arbitration is typically often quicker, more flexible (especially as to timing and as to the rules about admitting evidence), more efficient (for example, in the use of audio-visual aids), more confidential, more politically-neutral and better suited to taking guidance from experts. Further, arbitration is in many cases potentially even more effective than court litigation. By treaty (a 1958 New York Convention) arbitral awards are usually more readily enforceable in foreign countries than judgments, and by statutes courts increasingly are relatively restricted in interfering with arbitrations and must respect them.
Why an ICC Africa conference? What unique gap does the ICC Africa conference fill?
The ICC organizes comparable events annually on virtually every continent. It has long positioned itself as a leading institution worldwide for international commercial arbitration. It cannot credibly hold and maintain that position without having an event such as the annual conference for African arbitration. Africa needs at least one dedicated annual arbitration event if it is to be and remain an integral and relevant part of the global economy and arbitration community. There is no more compelling global “partner” for Africa to work with on these agenda items than the ICC.
How does ICC Africa achieve its goals and objectives with the annual conference?
It does so by the annual conference being the premier review event for and celebration of the African arbitration experience as well as the premier and preview occasion for the potential of the African future in arbitration. The ICC Africa conference does and will continue to do so for as long as its organization is efficient, the speakers are proficient and engaging, the attendance is strong, and the session sub-themes are topical in the eyes of the world and relevant in the eyes of Africans. I believe that the event this year “ticks all of these boxes” exceptionally well.
This is the 6th Annual Conference, what changes have you observed over the past 5 conferences?
Changes for the better abound. The key changes have been in the absolute number and quality of attendees, the complexity and sophistication of the session topics, and the massive organizational, financial and publicity work that is increasingly required to ensure a smooth-running event. For example, the event this year has both in-person and virtual attendance options and far more elaborate provisions for translation across languages than ever before.
Where in your view is arbitration in Africa headed in the next few years?
I believe that I am not alone in expecting the gap between arbitration in Africa and arbitration in the developed world to become much narrower than it is today. I see arbitration being more widely used to resolve disputes with an African element, African professionals being more actively involved in actual arbitrations and scholarly work than ever before, and growing in experience and sophistication, African courts being more “friendly” to arbitration, and African arbitral institutions growing to get stronger in their resources, capabilities and reputations.
An astute arbitrator yourself with experience spanning decades, what do you consider to be the key attributes of an arbitrator in today’s Africa?
The key attributes are the desire to improve oneself by seizing opportunities to increase one’s knowledge, to work as frequently as possible as an arbitrator or counsel in arbitration, and to be seen and “network” at events such as the ICC Africa conference and in the more widely-read periodicals. Without training and training and practice, one loses skills. Without visibility, one gets ignored, forgotten and underestimated.
Are there notable examples of how deliberations of past conferences have driven changes in practice or policy?
The impact of past conferences on practice and policy may not be readily measurable but should not be underestimated. Past ICC Africa conferences have offered loud and credible platforms for articulating influential ideas and driving pervasive professional movements for change, and those movements have led to welcome developments. Two that come to mind readily are (a) the practice direction by which the then Chief Justice of Nigeria formally instructed judges to stop interfering in arbitrations and (b) the Arbitration Bill that is set soon to be passed into law as an Act of Nigeria’s National Assembly.
What would you count as a success after next week’s conference?
Several measures come to mind, and all of them are important. For example, (a) the number and quality of attendees; (b) the stimulation, information and professional satisfaction that attendees are sent to get, (c) the visibility and recognition that our sponsors get from being sponsors, and (d) the impact that the content of the conference may have on government policy and the initiatives that arbitration organizations may adopt or prioritize as a result of the conference.
The conference comes up on June 1- 3, 2022, how can interested parties get involved?
To get involved, please go to and use the enabled flyer or visit the ICC website to get registered. We hope that you will be able to join us at the conference and look forward to welcoming you there next week.