Throughout my career arbitrating on disputes between companies and governments outside the courts, I’ve noticed a growing number of claims made by Africans. But at the same time, I’ve seen a limited number of African colleagues acting as international arbitrators on the panels that rule on these claims.
Official statistics back this up. Between 1998 and 2007, a total of 472 parties from Sub-Saharan Africa arbitrated their disputes before the International Chamber of Commerce (ICC). But over the same period, only 64 arbitrators from the same region were appointed by the ICC. North Africa fared slightly better with 225 disputing parties and 115 arbitrators over the same period.
Arbitration is a mechanism for resolving disputes outside the courts where a neutral third party – the arbitrator – decides the dispute between the parties in an award which the courts enforce. This award has the same force as the judgement of a court. Arbitration is a private process and the details are usually not published.
Arbitration is primarily used to decide commercial disputes between parties, such as between two oil companies or between a government and a mining firm, from different countries. Generally, each party chooses one arbitrator and the two then choose a third arbitrator, forming an arbitral tribunal of three. If they can’t come to an agreement on who to choose, or if one party fails to appoint someone, a third party will appoint the arbitrator. The parties can also agree to appoint one arbitrator.
Bias and poor perceptions
In my own research, I’ve looked at the issue of whether the use of arbitration across Africa can be a good mechanism for resolving disputes. In my survey of African lawyers and arbitration experts about their participation in international arbitration, I found that 82% of the 191 African arbitration practitioners that responded did not sit as an arbitrator in international arbitration between 2012 and 2017, and 59% did not act as counsel in international arbitration.
Three quarters of the people I surveyed believed they don’t actively participate in international arbitration. They blame poor perception of African arbitration practitioners by their foreign colleagues, bias by those appointing arbitrators in favour of foreign counsel, and the fact that Africans were not appointing fellow Africans as arbitrators.
In response to these findings, my colleagues and I began discussing the need to adopt a pledge to try and address the imbalance, modelled on a similar pledge aimed at improving the number of women arbitrators. The African Promise was born, with the goal commitment of signatories to “Improve the profile and representation of African arbitrators especially in arbitrations connected to Africa.”
Included in the pledge is a monitoring device which requests arbitration institutions, and other agencies who report arbitration activities, to publish data on the number of Africans they nominate (in addition to the number that are appointed) as arbitrators. We believe that such data will further expose the scale of this problem and locate the gap of who is refusing to appoint African arbitrators.
It should also help create a list of available and qualified African arbitrators that willing parties can appoint. If such a list exists, lawyers who say they don’t know any qualified Africans to appoint, won’t be able to use such an excuse.
Excluding qualified Africans from working as arbitrators is a disservice to those seeking to resolve their disputes through arbitration. Arbitrators make decisions over important questions of both law and fact and the exclusion of African arbitrators results in the exclusion of African voices and experiences from such decision-making and the international rule-making process.
Such exclusion seeks to perpetuate Africans as rule-takers, who in turn feel alienated from and disenchanted with a process crafted by “others” and “imposed” on them. At its heart, this threatens the legitimacy and acceptance of international arbitration as a fair process for the resolution of disputes.
Our goal is for the best candidate to be appointed to act as arbitrator in any dispute, with the parties able to access the widest possible pool of skilled and available people from which they can make an informed appointment. I’m hopeful that the African Promise will contribute in some way to international arbitration tribunals becoming truly international.