AfAA 2nd Annual International Arbitration Conference - Reform and Innovation in International Dispute Resolution: African Perspectives, 15th - 16th April 2021

1. Salutations and Opening

• The President of the African Arbitration Association and former Attorney-General and Minister of Justice of the Federal Republic of Nigeria, Chief Bayo Ojo;
• The Secretary-General of the African Arbitration Association, Dr Rukia Baruti;
• The Board of Directors and Members of the African Arbitration Association;
• Distinguished speakers and participants;
• Colleagues, ladies and gentlemen.

I am delighted to join you on the occasion of the second annual conference of the African Arbitration Association to take stock of the growth of the association so far and to deliberate on the conference theme – Reform and Innovation in International Dispute Resolution: African Perspectives. 

I am even more pleased to be delivering the keynote address of the conference as this signifies the importance of the partnership between the ALSF and the AfAA. As many of you know, the ALSF supported the establishment and preliminary launch of the AfAA in Abidjan in 2018 - not least because both our organisations acknowledge and seek to promote legal capacity and processes and their utilisation or contribution towards sustainable development in Africa. This includes addressing the asymmetry of legal capacity between African countries and investors, ensuring balance and fairness in contracts and dispute resolution, and providing innovative solutions to various legal issues. 

2. Outline of Address

Ladies and gentlemen, it is on that last point, which is also reflected in the theme for the conference, that I wish to focus this address. I will begin by rehashing the slew of issues in need of reform and innovative solutions; Next, I will discuss some interesting developments that are speaking to or could address these issues; And then, Mr President, you will no doubt – on account of seniority privileges at the bar – permit me to offer some snap proposals in conclusion. 

3. Issues in need of reform and innovative solutions in Africa

These issues are known to all of us. But for the purpose of this address, I shall categorise them as follows: 

Issues	Examples/Causes
i.	Legal capacity and accessibility issues	Dearth of expertise in or exposure to cutting-edge areas of law; Wide dispersion of cutting-edge legal expertise; Sub-standard trainings in some cases; Exclusive outsourcing of legal work to international non-African firms; Limited range of local law firms; Cross-jurisdictional practice limitations; High costs of legal training; Inadequate relevant physical infrastructure and facilities; Poor organisation and promotion; Non-selection of qualified persons for transactions, arbitrations;
ii.	Legal rules and processes	Lopsided investment treaty and contract provisions, and dispute resolution frameworks; Lack of or weak harmonisation across borders - within RECs and continentally; Non-qualitative frameworks for law and rule-making;
iii.	Gender inequality	I believe the matter speaks for itself! Increasing female enrolments and qualifications are not commensurate with senior and leadership roles, or arbitration appointments; Marginalisation from large transactions;
iv.	Cultural and customary issues	Disregard for cultural and customary norms; Inadequate documentation or recognition of cultural and customary norms – especially in large-scale land-based transactions;
v.	Inter-disciplinary collaborations & Data issues	Inadequate understanding or connections with non-traditional disciplines and emerging areas, e.g., technology, e-commerce, blue economy, space, data sciences, etc.; Poor data collection, interpretation, and analysis for effective decision and rule-making;
vi.	IP protections	Insufficient knowledge or understanding of creators of IP issues; Ease of IP registrations; Inadequate attention to IP issues in complex commercial transactions;

These issues are by no means exhaustive. Nor are they mentioned in any particular order. In highlighting and attempting to categorise them, one hopes to instigate the process of analyses and clarification necessary for the more enterprising and progressive ones among us to begin considering and innovating solutions to the issues.

4. Some interesting developments 

Ladies and gentlemen, it is not all doom and gloom. If the issues I just mentioned evoked despair, then the recent developments I am about to share should give us hope and inspire further efforts to overcome the challenges. In the interest of time, I will only share 3 or 4 of such developments: 

  i.          The ALSF Academy

Allow me, Mr President, to lead with and expatiate on a flagship innovation of my own organisation – the ALSF Academy virtual capacity building platform. Long before the pandemic we recognised that it would take innovative solutions to achieve our vision of ensuring sustainable legal capacity for Africa. The ALSF Academy therefore utilises technology to address some of the issues I mentioned earlier, especially the legal capacity and accessibility issues. The platform enables us to provide training and skills in the key sectors of our operations – extractives, power, infrastructure and sovereign debt; as well as in relevant soft skills – while also ensuring that we will have access to an expanding pool of qualified experts to advice on complex commercial transactions. The training materials, which include video presentations, slides, and course handbooks, are complemented by other sector publications and online resources developed or supported by or accessible to the ALSF. The materials and resources are being developed through our partnership with various legal entities including - ABLFA (African Business Law Firms Association), CIFAF (International Training Centre in Africa for Francophone Lawyers), EALS (East Africa Law Society), ILFA, SADC-LA (SADC Lawyers Association), ERSUMA (Regional High School of Magistracy of OHADA), and Strathmore Extractives Industry Centre (SEIC). To this end, we are also working with the AfAA to expand on the arbitration resources available to enhance the skills and practice of African lawyers. 

The merits of the ALSF Academy online portal include sustainability, knowledge transfer, and continuous improvement: 

• Sustainability: The online portal provides all-round access to skills and information complementary to in-person trainings and that can be readily updated or upgraded.
• Knowledge transfer: The training provided through the portal enhances the capacity of African lawyers especially in key learning areas in line with international best practices.
• Evaluation and improvement: The ALSF can monitor and improve the effectiveness of the training through the analysis of data on who has accessed the portal and which sections have been viewed and utilised.

Since the launch of the online portal in 2019, more than 7,000 new users have been registered and 223 users have completed various levels of training on the platform. We expect to register more users as we develop more content and introduce more interactive features. In time, the ALSF Academy should coordinate all relevant legal resources and training for African lawyers. The ALSF Academy is available at: WWW.ALSF.ACADEMY.

              ii.          Other law and tech platforms - The Lawyers Hub / LawTrella / I-Arb Africa / Arbitration in Africa Surveys / AfAA Arbitration Law Atlas

The next set of innovations are also technology-based and speak to a number of the issues I mentioned earlier, i.e., legal capacity and accessibility issues, legal rules and processes, interdisciplinary collaborations & data issues, IP protections, and gender inequality.

Mr President, I recently had the pleasure of participating in the Pan African Lawyers Union (PALU) conference panel on Legal Technology and Continuing Legal Education in Africa and was introduced to some amazing work by some young African lawyers. That they are women alone I believe goes a long way in resolving the gender inequality issues! 

One of the enterprising young women was involved in the creation of the Lawyers Hub – a legal-technology policy organisation that provides technology-driven solutions to policy making, legal practice, and access to justice. Their policy hub brings together lawyers, tech professionals, civil society, academia and public policy professionals to develop technology driven options for governance, including in emerging areas such as internet governance, digital trade, digital ID, and digital inclusion, as well as the interface with more traditional concepts such as human rights and sustainability. They are also engaged in the use of technology to improve dispute resolution processes and are exploring artificial intelligence and machine learning technology to improve access to and efficient delivery of justice. Another of the women innovators has created LawTrella, an online platform that uses technology to facilitate continuous professional development, networking, co-working and client interaction. 

Mr President, I have more initiatives by women to speak about. The SOAS Arbitration in Africa Surveys (which the ALSF has supported), contribute to resolving the data issues mentioned earlier, for more effective decision making. The I-Arb Africa website features useful information on African countries’ accession to various arbitration centres, eligible African arbitrators, an international directory of arbitrators, arbitration schedules and events, awards involving African participation, and analyses of awards and developments in the arbitration space. Of course, the AfAA’s own online platform provides a directory of its members and their expertise and hosts and provides links to various arbitration resources including an atlas of African arbitration laws (supported by the ALSF) – which should facilitate reviews and analyses and harmonisation or convergence of arbitration rules and processes across borders.

iii.          Reforms in the international investment regime

According to the UN Conference on Trade and Development (UNCTAD)’s 2019 World Investment Report, out of 29 International Investment Agreements concluded in 2018, 27 contained various innovative features – including provisions espousing sustainable development objectives, gender equality, preservation of regulatory space, enhanced investment dispute settlement provisions or none at all. 

And, regarding Investor State Dispute Settlement (ISDS) reforms, the ongoing processes for reform of ISDS frameworks – notably the ICSID and UNCITRAL regimes – are well known. The issues being considered for reform are relevant to us and wide ranging, including proposals relating to third-party funding, whether to have an ad hoc or standing advisory centre, review or appellate mechanisms, cost-effectiveness of proceedings, electronic processes, selection of arbitrators, arbitrators’ code of conduct and ethics, exhaustion of local remedies, frivolous claims, security for cost, and dispute prevention and mitigation. But perhaps more can still be done to coordinate African perspectives and articulate them more forcefully. 

I note that two great panels will be discussing the reforms in the international investment regime in more detail this afternoon, so I will say no more than that it is refreshing that the ongoing reviews are open and inclusive. 

5. Conclusions 

Mr President, I will now conclude this address with a few thoughts for our consideration. 

i.  A proposal for virtual hearing management services

The objective will be to provide a simple and quick to deploy virtual infrastructure for participation in virtual hearings by African countries (especially fragile countries with technological and infrastructural challenges) by leveraging or utilising the resources of AfAA members or affiliates across the continent. While it is derived from a similar service by the American Arbitration Association, the design must be distinct if it is to be responsive to the needs of African clients. Some of the unique features of this platform could include local language translation services; “demystification” of the locus the subject matter of the investment dispute; access to relevant cultural information, and secure meeting rooms. 

ii.  A feedback loop

As advisors to African governments on transactions that could potentially end up in disputes, the ALSF is interested in utilising the lessons learned in ISDS outcomes or awards to enhance transactions by our regional member countries. The AfAA is therefore encouraged to consider developing its analyses frameworks to support this process. 

iii.  Illicit Financial Flows (IFFs) and Climate Change

Africa loses about US$90 billion in illicit capital flight every year – that is nearly 4% per cent of the continent’s GDP. And the solution mainly lies in improving national capacities and governance/regulatory systems, negotiating better investment and taxation agreements, cooperating home countries, and transparency of the global financial system. But the international arbitration regime has a part to play in curbing this criminality. If investors can challenge taxation in international arbitration on the grounds of expropriation or violation of national treatment, most-favoured nation treatment and fair and equitable treatment, then investors must also be accountable for their international financial crimes. Thus, the international arbitration regime can contribute to exposing unscrupulous activities such as nationality planning, money laundering, transfer misprising, and other tax evasion or corrupt practices, without violating the notion of non-arbitrability of tax. This will require arbitrators to be well-informed and vigilant in this ever-evolving field; as well as appropriate reforms in international dispute resolution. 

Also, while climate change has worse repercussions for Africa, our continent’s legal systems are yet to develop the legal frameworks to fully confront this issue. As the laws and regulations play catch up, our arbitrators need to be vigilant and use their roles in defending against the impact of some of the investments on climate change in Africa. 

Finally, I wish to end with news of collaboration between the ALSF and the AfAA. Further to our support of the Africa Arbitration Legislation Atlas, we are planning to collaborate on more projects aimed at creating knowledge products, capacity building, and promoting arbitration in Africa. The details of the projects are yet to be finalised, but I am hopeful that we can realise our common objectives if all of us members and partners continue to work together.

Mr President, ladies and gentlemen, congratulations on your second annual conference. I look forward to a lively and rewarding experience.

Thank you. 

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* Director & CEO, African Legal Support Facility (ALSF)