New dawn for South African arbitration
South Africa’s new arbitration law came into force at the end of 2017. Now lawyers and clients alike will have to see if it lives up to its promises.
South Africa’s new arbitration law has come into effect, bringing with it the government’s hopes of making the country a regional leader in alternative dispute resolution (ADR) and protecting it from what it perceives as negative international arbitral awards.
Passed by parliament in March 2017, the South African International Arbitration Act No. 15 of 2017 was finally approved by the National Council of Provinces in November and assented by President Jacob Zuma on 19 December, commencing the following day.
The Evolution of Investment Arbitration in Africa
Investment arbitration in Africa is on the verge of transformation due to the continent’s progressive integration into the global economy and its growing experience in international dispute resolution. In recent years, the continent has made significant efforts to become an attractive destination for investments.
According to the United Nations Conference on Trade and Development’s (UNCTAD) 2017 World Investment Report, Africa attracted US$59 billion of foreign direct investment in 2016, which represents 3.4 per cent of all global investments.1 Foreign direct investment inflows to Africa were projected to increase by 10 per cent to US$65 billion in 2017.2
East Africa chief justices pledge faster trade dispute resolution
Chief justices from the East African Community have resolved to speed up cases involving trade disputes in order to support the regional process.
The judicial bosses from Kenya, Uganda, Tanzania, Rwanda, South Sudan and Zanzibar, met in Nairobi to draft a framework where judiciaries in the region will cooperate, share experiences and expertise, harmonise jurisprudence and jointly confront challenges to the administration of justice in the region.
“The process of regional integration, by its very nature, generates disputes between states, states and citizens and the judiciaries have stepped in to solve these peacefully and amicably,” said Uganda Chief Justice, Bert Katureebe.
FIFA kicks off National Dispute Resolution Chamber global implementation programme in Africa
FIFA hosted its first NDRC (‘National Dispute Resolution Chamber’) workshop in Johannesburg, South Africa from 31 May to 1 June. The event officially kicks off FIFA’s global programme to support the national implementation of NDRCs worldwide.
The initiative will see independent arbitration tribunals established by Member Associations (MAs) that are competent to handle disputes between clubs and players, mediate on employment and contractual stability, as well as training compensation or solidarity contribution litigations between clubs within the same association.
Sensitise public on win-win dispute solving mediation
Mediation is an alternative dispute resolution (ADR) mechanism where parties solve their grivances with the help of an impartial third party referred to as a mediator.
Mediation is recognised by the Constitution as one of the ways of solving disputes. Article 159 (2) (c) obligates the Judiciary to promote alternative forms of dispute resolution such as mediation.
The Judiciary initiated mediation on a pilot basis in April 2016 in the Commercial and Family Divisions of the Milimani Law Courts, Nairobi.
KRA raises Sh8.3bn in out-of-court settlements
Increased adoption of out-of-court options has seen the Kenya Revenue Authority (KRA) amicably resolve tax disputes with 181 companies, earning the public coffers Sh8.3 billion.
KRA Commissioner for Legal Services and Board Coordination Wairimu Ng'ang'a said on Tuesday that the tax disputes handled in the past three years also saved companies and taxpayers a lot of money that would normally have been spent in litigation.
“It provides an environment where tax disputes are amicably resolved without recourse to lengthy and costly litigation. The process is confidential, without prejudice, voluntary and non-adversarial,” she said.
Driving change in international arbitration
Participants in the afternoon session of CDR’s Spring Arbitration Symposium looked at both the changes the profession is undergoing and the changes they want to see in the future.
China’s One Belt, One Road (OBOR) programme is perhaps the largest and most significant series of infrastructure projects in the world. Chaired by Duncan Matthews QC of 20 Essex Street, the first afternoon session at CDR’s Spring Arbitration Symposium looked at the opportunities it will create for disputes lawyers.
As James Doe of Herbert Smith Freehills (HSF) in London pointed out, only the Chinese government knows exactly what OBOR is meant to be, but with an estimated budget of USD 4 trillion, the Belt and Road elements comprise land and sea trade routes through 65 countries, with huge amounts of infrastructure required along both, including ports, roads, railways and communications lines.
Energy fuelling Africa’s arbitration growth
With a lively energy sector and an ever-changing legal landscape, plenty of arbitration activity is expected from Africa in the next decade, provided parties are allowed to access it.
Arbitration is growing in Africa and while there are many practical obstacles to overcome before there is a consistent arbitral picture across the continent, the ups and downs of the energy sector should provide plenty of practice over the coming years.
That was the takeaway for delegates attending the London Centre of International Law Practice third annual conference on energy arbitration and dispute resolution in the Middle East and Africa, hosted at Herbert Smith Freehills (HSF) in London earlier this week.
We need alternative dispute resolution
The ground-breaking court judgment that held Imperial Holdings Limited and its chief executive Mark Lamberti jointly and severally liable for impairing the dignity of Associated Motor Holdings’ financial manager Adila Chowan provides much-needed hope for victims of discrimination in the workplace.
The judgment highlights the challenges of eradicating systemic discrimination and inequalities in South Africa. The sad reality is that many victims of discrimination cannot afford to exercise their rights, as it is expensive to litigate. Arbitration of discrimination disputes is only compulsory for certain categories of employees. This leaves many victims of discrimination in limbo, making it difficult to break the pervasive cycle.
