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SOAS Arbitration in Africa Survey

by Hiro Aragaki

July 2018

Indisputably

Hiro Aragaki
Hello all: This is my maiden post on Indisputably! A big thank you to my esteemed colleagues Andrea, Michael, Sarah, Art, Jill, Cynthia, Jen, and John for letting me blog with you. I hope you don’t regret it.

And now for the real news. My colleague and friend, Emilia Onyema, has recently published the groundbreaking SOAS Arbitration in Africa Survey, the first survey of its kind to take a pan-African snapshot of African arbitration practitioners—their expertise, experience, skills, and views on arbitration. The Survey is eye-opening reading for anyone interested in how arbitration is developing on the ground on the African continent, a subject about which there is precious little data or information. It is also a subject that has increasingly captured the attention of law firms, provider institutions, and scholars around the world.

One hundred and ninety one arbitration practitioners responded to the Survey in three languages (English, French, and Arabic). They were asked questions such as: How often they were selected to serve as an arbitrator or a mediator, how many arbitrations they handled as an advocate, their confidence level in the national arbitration laws, etc. One of the purposes of the Survey was to bring to bear “long absent and much needed African voices in arbitration.” Key findings of the Survey include:

• Nigeria dominates the African arbitration scene insofar as it has far and away the greatest number of arbitration practitioners. Surprisingly, more than 50% of all respondents were domiciled in Nigeria, which is consistent with data obtained from the CIarb on their African membership. South Africa, Ghana, and Kenya were the next-most represented countries, each less than 10% of the survey sample.

• The majority of respondents did not sit as an arbitrator in the past five years in domestic (58%) or international (82.2%) disputes. The survey report concludes that “[t]his finding supports the anecdotal evidence that there is a disproportionate imbalance in the appointment of African arbitrators in international disputes.” Indeed, 74% of respondents stated that African arbitration practitioners are not adequately represented in international arbitrations involving African parties or seated in Africa. Some reasons given were poor regard for and negative stereotypes of Africans as arbitrators and perhaps even as arbitration counsel. Apparently this bias exists among Africans as well: “Africans,” one respondent explained, “do not nominate Africans for international arbitration. They prefer foreign arbitrators.”

• Over 80% of respondents were trained as arbitrators or were members of CIarb.

• 45% had acted as a mediator in the last 5 years, of which 15% had done more than 15 mediations.

• 65% stated that the practice of arbitration has positively impacted the practice of litigation in their home jurisdictions. This was fascinating to me, as it is consistent with my argument in the U.S. context that certain procedural advantages of arbitration helped inspire groundbreaking reforms to federal judicial procedure in the first part of the twentieth century, and with my argument that arbitration supporters often shortchange arbitration by touting its speed and efficiency rather than its ability to provide superior adjudicative procedure. In the words of one respondent: “Especially among the law firms active in the international arbitration space, one sees that their approach to litigation tends to be less traditional and more commercial (e.g., avoiding needless contention about admissibility of documents), their pleadings and submissions are robust, well oranised and clear, and there is a willingness to be creative in securing efficient justice (e.g., abridged timelines, etc.).”

• 55% of respondents considered the national arbitration laws of their jurisdiction to be effective. Similarly, 56% of respondents considered judicial support for arbitration in their jurisdiction to be effective.

The Survey is just the first of several planned for coming years; hopefully, more questions will be posed in future versions that will help fill out the picture of African arbitration from the ground up and help push needed reforms forward. The survey was released at the Fourth Annual SOAS Arbitration in Africa Conference, which was held from May 2-4, 2018, in Kigali, Rwanda. The prior conferences were held in Addis Ababa (Ethiopia), Lagos (Nigeria), and Cairo (Egypt). In an effort to include as many continental stakeholders as possible, all proceedings were simultaneously translated into English, French, and Arabic.

The fifth conference in the series is scheduled for February 12-14, 2019 in Khartoum, Sudan, at which yours truly will be speaking. A new panel on mediation and negotiation has been included, which will hopefully be a continuing trend for future iterations of the conference. More details on the Khartoum conference will follow!

Hiro Aragaki joined the Loyola faculty in 2011.  His scholarly interests cluster around the intersection of contract and procedure.  He has written extensively on federal arbitration law and on interest-based dispute resolution in the public sphere.  His work has appeared in the University of Pennsylvania Law Review, the UCLA Law Review, and the Yale Law Journal Online, among others. His most recent work, Equal Opportunity for Arbitration, was selected for presentation in the Civil Litigation & Dispute Resolution category at the Stanford/Yale Junior Faculty Forum.  In 2011, he traveled to Dhaka, Bangladesh, to train judges and lawyers in mediation and to provide advice on the design of an effective court-connected ADR program.



Website: www.lls.edu/faculty/facultylista-b/aragakihiro/

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