Member news

Report on AfAA observer status at the UNCITRAL 81st Session Working Group ll

5, March 2025

Report on the UNCITRAL WORKING GROUP II SESSION (Dispute Settlement)81st session, 3-7 February 2025, New York By Hon. M. Ang’awa MBS FCIarb**

Delegates: Chief J Akingbola AKINOLA SAN director, Ikpeme Bassey NKEBEM Secretary General, Chief C Adebayo Ojo -Immediate past chair, M. Ang’awa-Director

Introduction

The working group II (dispute Settlement) held its 81st working group at the United Nations in New York between the 3rd and the 7th of February, 2025. AFAA were observers together with other Non-governmental organizations. The committee had prior to the meeting, requested, all State Parties and Observers to come up with the position in each of their jurisdiction, on the issue of electronic awards and if possible case law.

The questions sort to be answered were:

1. What is the status of foreign arbitral awards (a) in electronic form or (b) with digital signature for enforcement by courts? How would they be submitted to and treated by courts including relevant practice and case Law?

2. What is the status of domestic arbitral awards (a) in electronic form or (b) With digital signature for enforcement by courts? How would they be submitted to and treated by courts, including relevant practice and case law?

3. Relevant Judgments, if any, should be submitted.

ISSUE

The topic at hand was the recognition of awards in an electronic format. There have been different practices in different jurisdictions. Moving forward the working group want to allow parameter’s for the recognition of awards in electronic form.

To do this, inter-alia, the committee came up with two principles:

i) Non-discrimination awards in electronic form. These type of awards should not be discriminated, over the ones held in paper.

ii) Functionality principles. The committee was looking at the basic criteria, that the awards should be able to meet certain functions in criteria. The main one being – to be able to communicate the intention of the tribunal and the authenticity of the award. The discussion on functionality on e-signature. How does one confirm the signature of electronic awards? What then is the best way to confirm electronic awards? What form should an electronic award take? The general argument was that whatever form the signature takes it should not be too complicated. When it comes to the paper awards, if you do not have the high standards of signatures being genuine or not. Whatever standard is applied, it should not be too high as it will dissipate the paper award.

iii) The recommendation of the New York Convention is covered under section 3 and 4. A call on member states to acknowledge awards and not treat them less favorable compared to paper awards.

Conclusion

As members we were recommended to put forward the status in our respective countries concerning the electronic awards. AfAA wrote a summary of known jurisdiction and case law. Information from Africa is scarce. What AfAA could contribute is by lobbying our respective countries to provide these

information concerning electronic Arbitration and case law and to lobby for reform. There should be a claw back where electronics is not provided in African countries then provision should be made to accommodate them.

Africa needs to be heard. AfAA is a good forum to do this.

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The African States that were delegates as party to the convention were: Cameroon, Cote D’Ivore*, Equatorial Guinea, Democratic Republic of Congo, Ghana* , Kenya*, Malawi*, Nigeria*,Somalia*,South Africa, Uganda, Zimbabwe*, United republic of Tanzania*, Zambia*.

The International Organizations

1, The United Nations system – World Bank*

Inter-Governmental Organization

2. Permanent court of Arbitration*

Non-Governmental Organization

3. African Arbitration Association*

James Akingbola AKINOLA SAN director

Ikeme Bassey NKEBEM Secretary General

C Adebayo Ojo Immediate past President AfAA

Hon. M. Ang’awa, Director

Arbitral Women*

Chartered Institute of Arbitrators (CIARB)*

International Chamber of Commerce (ICC)

Among others.

*Delegates who were present. Out of 15 only 9 or thereabouts were present.

Acknowledgement

Mr. Allan Githaiga, Deputy Chief State Counsel, Attorney General’s Office.

Mr. Derrick Nzioka, State department for Foreign Affairs.

Mr. John Abuya, Student Research Assistant

State Countries of France, Zimbabwe, Kenya and United States of America who recognize the challenge Africa and other similar jurisdiction may have.

(Side event on dispute resolution in the digital Economy (DRE) by the UNCITRAL secretariat and “The initiative for the recognition of E-Awards through Digital Links between Judicial System and Arbitral Institutions” from The Kingdom of Saudi Arabia were presented by invitation.)

**Hon. M. Ang’awa is a director of the AfAA.