By Iain McKenny
The event at White & Case’s office during Paris Arbitration Week at the end of April was a bilingual affair representing two of the largest business languages in many African countries and a multitude of views on international arbitration in Africa.
Well attended with an audience willing to be engaged and expertly moderated by White & Case’s own Charles Nairac, the event did not disappoint. However, you could have heard a pin drop when the inevitable question of enforcement was asked.
Having attended many international arbitration and Africa forums, roundtables, talks and chats over the years it is still bewildering that when it comes to enforcement, the erudite, the experienced, the bold and the brave all start contemplating the scuff marks on their undoubtedly well heeled shoes.
Let’s be clear, the question before this panel and a hundred panels before them was how long would it take to enforce an award against a commercial respondent based in Africa? In other words, when can the claimant collect? The response was an old stock favourite; there are just too many variables. Each claim is different because each respondent is different and on and on it went.
There are two diametrically opposed positions in relation to this question. On one side, there is the expectation of a numerical answer; It will take X months and approximately cost Y dollars. On the other side, wonderfully articulated, beautifully rehearsed obscurity. Surely there must be something in the middle?
At another recent conference where I spoke on third party funding in Africa, it was conveyed that The International Council for Commercial Arbitration (ICCA) has or is in the process of assembling a task force to track as many arbitral awards rendered against African entities and countries to understand how successful enforcement in Africa is and how long it can take. This is a bold project and one that should be given serious attention in the disputes market. If the task force is successful it will allow claimants to make that all important decision to commence an arbitration or not.
There is an old joke that twenty years ago Africa had a bright future…and it still does. This applies equally to the disputes market as it does to many other industries in Africa. However, with bold projects such as that envisioned by ICCA, it may help provide confidence to would-be claimants that enforcement in Africa is no fools errand and in so doing allow meritorious claims to come to light.
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