Arbitration services in the OHADA region and beyond - Exchange among peers for enhancement
Investments in African countries have grown at a steady pace over several years, some of which have triggered disputes that require inclusive and effective resolution services in an increasingly challenging business environment. Arbitrage is one such a commercial dispute resolution method. Features like lower costs, quicker process times, and less formal structures make arbitration an attractive alternative to traditional national judicial systems and thus, arbitration services contribute to an enhanced, more inclusive business environment and investment climate for the private sector.
Although arbitration has been promoted in African states for several years and arbitration centres have flourished on the continent for several decades, especially in the OHADA Region1,the activity and market share of arbitration centers remains insignificant compared to major international arbitration centers across the planet, which still handle most arbitration cases originating from African countries.
Thus, much is still needed to ensure a functioning and active ‘arbitration market’ for both the centres and the private sector on the continent, especially in the OHADA Region. After the successful completion of a technical assistance mission of the ICR Facility to the CENACOM in DRC2,it became relevant to invite arbitration centers from other countries to learn from what has been accomplished in DRC and give them a platform for networking and exchanging experience.
When the ICR Facility held a peer-to-peer exchange for private sector organisations providing arbitration services in the OHADA Region and beyond, the role of arbitration centres in developing arbitration practice was examined, in line with current trends and best practices in international arbitration
Over three half days, peers from ten different African countries discussed common challenges and exchanged experiences and insights. The diverse and interactive program comprised presentations from national and international experts, experience sharing by peers, plenary discussions as well as working sessions in smaller groups.
Discussions were organized around two main topics, promotion of arbitration as the preferred way of resolving disputes and managing the arbitral process.
i) Promotion of arbitration as the preferred way of dispute resolution
One part of the exchange aimed at reviewing the initiatives by arbitration centres and other stakeholders in developing arbitration practice and increasing the arbitration market. On one hand, the emphasis was placed on the work of the arbitration centres and all the other stakeholders in relation to visibility of the centres and awareness of their offers in terms of alternative dispute resolution. On the other hand, a focus was set on the need for more involvement of state officials/governmental authorities in pushing for arbitration as the preferred means of resolving disputes involving States and State Entities as well as public entities, whether via legislation or other appropriate mechanisms.
ii) Managing the arbitral process
Building upon the recent experience of CENACOM, an arbitration centre in Kinshasa, Democratic Republic of Congo which recently received technical assistance from the ICR Facility focusing on the revision of the centre’s arbitration rules and bylaws, the capacity enhancement of its arbitrators as well as the improvement of its promotion activities, the discussants drew from experiences of both national and regional initiatives in contributing to the efficient management of the arbitral process. Among other things, they considered best practices in international arbitration and how they may be developed. Some of the specific topics under this theme included:
- how to increase the quality of arbitration services in OHADA countries.
- The current trends/best practices in relation to:
- managing an arbitration center
- handling cases on a daily basis
- selecting and retaining high profile and competent arbitrators
- training arbitrators and all arbitration practitioners
- ensuring diversity, gender equality and inclusiveness in the selection and appointment of arbitrators
- preserving confidentiality of the arbitral process while ensuring visibility of the work of the centers via publications of arbitral wards
- establishing statistics of the arbitral activity of arbitrations centers.
iii) Lessons learned
1. Arbitration in the OHADA Zone is slightly improving, but still far from international standards.
2. African arbitration centres still do not register many international arbitrations cases, compared with major international arbitration centres.
3. One of the objectives of the AfCFTA3 is to reverse the trend towards referral of disputes to arbitration centres within the African continent.
4. The legal form of arbitration centres in the OHADA zone, often attached to chambers of commerce, creates difficulties for their development.
5. The growth of the arbitration centres is hampered by a lack of robust communication and marketing strategies to attract new business.
6. The staff of the arbitration centres would benefit from more regular training.
7. The Centres offer real expertise in OHADA and international arbitration.
8. Centres with fewer than 10 new cases per year should question their model and consider merging with others.
9. Curtailing financial dependence on states and/or other external sources of funding is crucial for African arbitration centres. Funding could for example come from payments for challenging arbitrators or deducting a small contribution from arbitrators’ fees for the centers.
If you are an eligible stakeholder in an African, Caribbean or Pacific country, you may want to apply for short term technical assistance through the ICR Facility4 to help you address issues related to the improvement of the business environment and investment climate in your country.
1“OHADA”, is the French acronym for the Treaty creating the Organization for the Harmonization of Business Law in Africa, the OHADA Treaty, which was signed by fourteen African Heads of States on October 17, 1993 in Port Louis (Mauritius) and currently in force in the following seventeen African countries, in order of ratification: Bissau Guinea, Senegal, Central African Republic, Mali, Comoros, Burkina-Faso, Benin, Niger, Ivory Coast, Cameroon, Togo, Chad, Congo, Gabon, Equatorial Guinea, Guinea (See Jacqueline Lohoues-Oble, Traité du 17 Octobre 1993 Relatif à l’Harmonisation du Droit des Affaires en Afrique, In J. Issa-Sayegh et al., OHADA: Traité et Actes Uniformes Commentés et Annotés, 63, Juriscope, 2nd ed., 2002) and Democratic Republic of Congo (under The law N° 10/002 on adhesion of Democratic Republic of Congo to OHADA, promulgated on February, 11, 2010: www.lobservateur.cd/index.php. See also Newsletter OHADA.com: 2010-02-19 07:57:32).
2Through technical assistance, the Facility has provided support to the National Centre for Arbitration, Conciliation and Mediation (CENACOM) in the Democratic Republic of Congo (DRC) in its operations, particularly in two distinct areas, namely the development of a communication plan (awareness-raising and outreach) and the training of arbitrators and revision of its Rules (Arbitrations Rules, Bylaws) and Arbitration Fees Schedule. The mission took place from March 2nd to May 31st, 2021.
3African Continental Free Trade Agreement.
The ICR Facility supported the production of this publication. It is co-funded by the European Union (EU), the Organisation of African, Caribbean and Pacific States (OACPS) under the 11th European Development Fund (EDF), the German Federal Ministry for Economic Cooperation and Development (BMZ) and the British Council. The ICR Facility is implemented by GIZ, the British Council, Expertise France, and SNV. The contents of the publication are the sole responsibility of the authors and do not necessarily reflect the views of the EU, OACPS, BMZ or of the implementing partners.