1. EFFECTIVE DISPUTE
RESOLUTION IN
AFRICA – KNOWING
THE TERRITORY
ROGER WAKEFIELD

2. INTRODUCTION
 Sub-Saharan Africa is one of the world’s fastest growing
regions particularly in infrastructure, mining, energy and
telecommunications
 Number of commercial disputes in Africa increasing
 Legal systems differ significantly from country to country
– a difficulty for investors
 Discussion today-
 OHADA: West African initiative to harmonise business and
alternative dispute resolution laws;
 Enforcement of foreign arbitral awards in Africa generally and
in South Africa;
 Case studies – Democratic Republic of the Congo (DRC)

3. OHADA : ORGANISATION FOR THE
HARMONISATION OF BUSINESS LAW IN AFRICA
 Supranational organisation founded in 1993
 Good example of regional initiative encouraging effective
ADR in Africa
 Encourages foreign investment
 Purpose is to modernise, standardise and harmonise
commercial law in Africa
 Promotes regional integration and economic growth

4. OHADA (CONTINUED)
 OHADA members – Benin, Burkina
Faso, Cameroon, Central African Republic, The
Comores, Congo, Ivory Coast, Gabon, Guinea, Guinea
Bissau, Equatorial Guinea, mali, Niger, Senegal, Chad
and Togo
 DRC joining OHADA

5. OHADA (CONTINUED)
 Harmonisation of national law achieved through “Uniform
Acts”
 Uniform Acts on –
 Company Law
 Insolvency
 Securities
 Accounting
 Arbitration
 Uniform Acts supersede contradictory national law

6. THE UNIFORM ARBITRATION ACT
 Enacted by each member state
 Provides a arbitration framework based on UNCITRAL
model law
 Awards are final and binding in all OHADA member states
 Simple mechanism for enforcement : domestic and
international awards
 Parties elect members of arbitral tribunal
 Parties choose rules of procedure

7. COMMON COURT OF JUSTICE AND ARBITRATION
(CCJA)
 Established under the OHADA treaty
 Sits in Abidjan, Ivory Coast
 Judicial and arbitral functions
 Judicial capacity : reviews awards in limited instances and
scrutinises awards
 Arbitral capacity : supervision of administration of
arbitration proceedings. CCJA Rules apply

8. ENFORCEMENT OF ARBITRAL AWARDS IN
OHADA STATES
 Exequatur issued by a judge confirming the existence of
award
 Exequatur refused on very limited grounds – public policy
 CCJA issues exequatur where judge refuses it
 Awards final and not subject to appeal

9. REVIEW FOR NULLITY
 Judge of member state reviews for nullity
 CCJA may set aside judge’s decision
 Limited grounds for review for nullity-
 Tribunal acted beyond its powers
 Tribunal irregularly appointed
 Award made in absence of valid arbitration agreement
 Failure to observe due process
 No reasons given for award

10. ENFORCEMENT ELSEWHERE IN AFRICA AND
SOUTH AFRICA IN PARTICULAR
 27 African states are party to New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
 Courts of signatory states must give effect to agreements
to arbitrate and recognise arbitration awards in other
contracting states
 African signatories to New York Convention : Algeria,
Benin, Botswana, Burkina Faso, Cameroon, Central
African Republic, Ivory Coast, Djibouti, Egypt, Gabon,
Ghana, Guinea, Kenya, Lesotho, Liberia, Mali, Mauritania,
Mozambique, Niger, Nigeria, Rwana, South Africa, Tunisia,
Uganda, Zambia and Zimbabwe
 New York Convention facilitates enforcement with
minimum inconvenience

11. ENFORCEMENT ELSEWHERE IN AFRICA AND
SOUTH AFRICA IN PARTICULAR (CONTINUED)
 Foreign arbitral awards – freely enforceable in other
signatory states
 New York Convention allows limited defences –
 Legal incapacity of party to arbitration agreement
 No notice given or party barred from presenting case
 Arbitrator exceeded jurisdiction
 Composition of tribunal contrary to arbitration agreement
 Award not final
 Subject matter of award not arbitrable
 Award contrary to public policy
 Reciprocity

12. ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
IN SOUTH AFRICA
 South Africa party to New York Convention
 Convention given effect to by Enforcement of Foreign
Arbitral Awards Act 1977
 Attachment of asset required to found jurisdiction to
enforce award against foreign defendant
 South African court will not reconsider the merits of the
case

13. PROTECTION OF BUSINESSES ACT OF 1978
 Unnecessary obstacle to enforcement
 Section 1(3) requires approval of the Minister of Trade
and Industry for enforcement if foreign award connected
with-
 “an act or transaction …which took place at any time… and is
connected with the
mining, production, importation, exportation, refinement, pos
session, use or sale of or ownership [of] any matter or
material , of whatever nature, whether within, outside, into
or from the Republic”
 Very wide wording
 Prima facie applies to all foreign awards
 Section abused by defendants seeking to delay
 Courts interpret section restrictively : applies to raw
materials only

14. CASE STUDY: SOGEM V BANRO [2002] JOL 9854 (C)
 Litigation in the DRC
 Lessons learnt –
 Agree to arbitrate
 Avoid DRC courts
 Seek advice before defending litigation in the DRC

15. CONCLUSION
 Many African countries encourage ADR
 Many ADR options for African disputes
 Give careful consideration to dispute resolution provisions
in African cross-border transactions.

17. THANK YOU
Roger Wakefield
12 July 2012
Nothing in this presentation should be construed as formal
legal advice from any lawyer or this firm. Readers are
advised to consult professional legal advisors for guidance
on legislation which may affect their businesses.
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