Foreword to the Special Issue

This Special Issue publishes some of the papers delivered at our 2021 SOAS Arbitration in Africa conference which was co-hosted with the Casablanca International Mediation and Arbitration Centre (CIMAC) and held virtually under the theme, "Navigating the interests of African states in international arbitration and mediation".[1] This conference focused on the response of states to the backlash against Investor-State-Arbitration (ISA) through the UNCITRAL Working Group III discussions and papers; the traction that mediation is gaining in international dispute settlement; and the possibilities posed by the African Continental Free Trade Area Agreement and its Protocols, to the economic growth of African states. The keynote paper was delivered by the then Legal Counsel of the African Union, Ambassador (Dr) Namira Negm on the dispute resolution settlement under the AfCFTA. I set out a summary of the SOAS Arbitration in Africa conference series and a short description of the content of each paper in this Special Issue.

SOAS Arbitration in Africa Conference Series

This conference series was borne out of a four-year (2015-2018) research project titled: 'Creating a Sustainable Culture of Arbitration as a mechanism for Commercial Dispute Resolution in Africa'. This research project focused on the transformation and enhancement of the use of arbitration as the dispute resolution of choice within the African continent. This research project produced two edited book collections (both published by Kluwer Law International): 'The Transformation of Arbitration in Africa: the role of Arbitral Institutions' (2016)[2] and 'Rethinking the role of African National Courts in Arbitration' (2018).[3]

This conference series held in different regions of the continent. We started at the African Union Secretariat in Addis Ababa (2015) where we examined the role of African arbitration institutions in the development of arbitration in Africa.[4] It was at this conference that the movement towards the knowledge and engagement of African arbitration practitioners with each other was kick-started. In 2016 our Lagos conference focused on the role of the judiciary in the development of arbitration in Africa with senior judges from Nigeria and Zambia in attendance.[5] In Cairo in 2017, we examined how the executive and legislatures across Africa can better support the development of arbitration in their individual states.[6] Finally, in Kigali in 2018, we engaged with members of the African arbitration community on how they can, through their practice, support the development of arbitration in Africa.[7] This research project concluded in 2018.

The Conference Series Post the Research Project

Following a unanimous call by participants at our 2018 Kigali conference for the continuation of this conference series, we decided to re-purpose the series while retaining its qualitative content and engagement. The call for continuation was primarily based on the experiences of our conference attendees as these create a space for them to meet other Africans involved in dispute resolution and as a space to learn more about arbitration developments in other African countries. The new purpose of this conference series is to work with nascent arbitration communities in different African states to continue the propagation of the message of arbitration and ADR. In this way, this conference series, along with its following of attendees that it has developed over the years, can fully support such communities and states to develop a culture of arbitration for the resolution of their primarily commercial disputes; continue to create the much-needed awareness, education, engagement, networking; and continue to support developments in this field of the law and study. In 2019 our fifth conference was held in Arusha,[8] and in 2020 our sixth conference was held in Douala.[9]

The Papers in this Special Issue

We have selected 10 papers delivered or relevant to the theme of our 2021 conference. Each paper was peer reviewed by a review committee composed of Professor Emilia Onyema; Professor Hiro Aragaki; Professor Paul Idornigie and Dr Chrispas Nyombi, to whom we extend our gratitude for enriching the content of the papers.

In addition to Ambassador Negm's discussion of the dispute settlement mechanism under the AfCFTA; Bobby Banson examines the innovative features of the 2016 Nigeria/Morocco BIT and argues for its adoption to improve stakeholder participation in FDI. Tafadzwa Pasipanodya and Rumbidzai Maweni examined the tension between the need for FDI and the response of African states to the challenges posed to the environment and climate change making some suggestions on how these states can further enhance some relevant provisions in their new IIAs. Chrispas Nyombi argues for the reform of the EAC Private Sector Development Strategy to enable it to achieve its purpose in support of the AU mechanism for the promotion of economic development and integration across the continent.[10] Roderick Cordara picks up on taxation related issues in ISDS cases involving Africa states, and elicits ideas for both states to ensure they do not fall foul of their IIAs through their tax gathering efforts, and for investors on how they can better protect their investments. Mouhamed Kebe then examines the current challenges of African states through their participation in ISDS and suggests remedial actions. Hussein Haeri and Giacomo Gasparotti focus their discussion on dispute prevention and argue for the proper coordination of investor disputes in African states. Lise Boseman and Emilie de Haas continue this discussion through an analysis of the proposed Advisory Centre by the UNCITRAL Working Group III and whether such a Centre can serve the interests of African states. The last two papers focus on mediation as an increasingly resorted to alternative to arbitration in African states. Mariana França Gouveia and Ana Coimbra Trigo discuss mediation in Lusophone African countries while Nigel Mutuna examines mediation in Zambia.

Professor Emilia Onyema, PhD, FCIArb
June 2022