Wesley Pydiamah and Manuel Tomas, Eversheds Sutherland
This is an extract from the fourth edition of GAR’s The Guide to Advocacy. The whole publication is available here.
The genesis of this chapter mirrors what every arbitration practitioner is currently witnessing: international arbitration and Africa is without doubt a hot topic these days, and one arrives at this conclusion simply by looking at the number of arbitration conferences with ‘Africa’ as the overarching theme.
This is not surprising. With its immense natural resources and need of infrastructure to sustain its economic growth, Africa is more than ever the promised land for foreign capital, investments and projects. But on the other side of the coin is the proliferation of disputes and arbitrations in particular. To have a better sense of recent developments, the last statistical reports from major arbitral institutions are rather enlightening: the International Chamber of Commerce (ICC), for instance, witnessed a stunning rise of 56 per cent in 2016 in the number of parties coming from Africa (compared to 2015) and a further rise of 6.67 per cent in 2017 compared to the previous year.
Likewise, the number of arbitral institutions in many African countries has rocketed in recent years, and various countries and cities have their own ‘arbitration week’ (e.g., Mauritius and Johannesburg) or ‘arbitration day’ (e.g., Casablanca). In 2016, the International Congress and Convention Association held its annual congress in Mauritius, the first to take place on the African continent. All in all, the trend denotes what some describe as the ‘Africanisation of international arbitration’ and the willingness of all stakeholders to promote international arbitration as part and parcel of Africa’s prosperity.
Seasoned arbitration practitioners with significant experience of disputes in Africa will always have those overarching words of caution: never consider Africa as one reality. The continent is indeed very diverse, and it would be a mistake to think that the three sub-sections of this chapter could capture the full African reality.
You will have to adapt to the arbitrators’ culture – particularly the chair’s
Cultural neutrality is one of the qualities expected from a good international arbitrator. He or she must be able to understand the cultural context of the positions adopted either by the parties or the other members of the arbitral tribunal. This requires both knowledge and humility – knowledge of the major differences between the legal systems with respect to substantial solutions and procedure; humility, to avoid the natural assumption that one’s own system is superior to all others. Good counsel in international arbitration proceedings need the same qualities, as, unless they are lucky enough to appear before a tribunal composed of arbitrators who are really culturally neutral, they will have to adapt to the arbitrators’ culture, in particular that of the chair. In any case, arbitrators are human beings and cannot completely detach themselves from their own cultural bags and baggage. Thus, a common lawyer should be aware that an arbitrator trained in the civil law system has little interest in strictly procedural issues and will be rapidly irritated by numerous objections during the examination of witnesses. Counsel should refrain from making such objections unless they are absolutely necessary. Likewise, a civil lawyer should know that common law arbitrators find it normal to interrupt counsel with embarrassing questions during their oral argument and that it is not a sign of partiality or hostility, contrary to what they may be inclined to think. They just should be patient and take the question as an opportunity to further explain their case.– Yves Derains, Derains & Gharavi
The first sub-section concerns cultural considerations in French-speaking Africa, and the immediate question is what do we understand by that? Are we speaking of those countries where French is the official language or countries where French is used alongside other languages, with no particular status as to its official character or otherwise?
French-speaking Africa in fact cuts across extremely different realities where French as a language may not be the most appropriate means to categorise a particular country. In some countries, French is the only official language, and in others it is just one of the official languages. In a few countries, such as Mauritius, French is more widely spoken than English but the latter is the only official language. Then again, there are some countries, such as Algeria, where French is used to conduct business but is not an official language.
In fact, even if the French language can be considered the common denominator for states and geographical areas that may otherwise have little or nothing in common, the one other aspect that does have importance is the legal system. And while French-speaking Africa is a particularly fragmented space, culturally, politically and economically, its civil law tradition – inspired and inherited mostly from French law – is rather striking.
This is where ‘Africanisation’ comes into play. African states are no longer satisfied with just their heritage and have decided to embark upon their own reforms. This is particularly so in West Africa, which constitutes a large part of the so-called French-speaking Africa. It is in this region that one of the most important unifying efforts of the whole continent has emerged in implementing the OHADA (Organisation for the Harmonisation of Business Law in Africa) system.
OHADA is an intergovernmental organisation for legal integration and is composed of 17 Member States, most of which are French-speaking. Its purpose is to achieve legal consistency and uniformity among the Member States. In December 2017, the OHADA Council of Ministers adopted three new instruments for arbitration and dispute settlement in general, namely a modified Uniform Act on arbitration, revised Common Court of Justice and Arbitration (CCJA) Arbitration Rule, and a new Uniform Act on mediation, which all have the aim of modernising the practice of arbitration and mediation in the OHADA zone.
This is the first cultural consideration in French-speaking Africa. Arbitration practitioners need to understand the proper legal framework of these countries. Language is a common feature but, more importantly, understanding the legal system, its roots, evolution and current state is of paramount importance.
Choice of arbitrators
The second cultural consideration is the choice of arbitrators in cases involving French-speaking Africa.
At the outset, it bears noting that the number of African appointments remains low, and this is regrettable. According to the 2018 ICC statistics, 3.1 per cent of the total appointments were of African origin, compared with 3.9 per cent in 2017 and 2 per cent in 2016.
There are two main aspects to note in terms of choosing arbitrators. First, the choice is often determined by the subject matter of the dispute, the seat as well as the law applicable to the substance of the dispute. Although there is no reason why an arbitrator with a common law background would not be able to handle an arbitration seated, for instance, in Dakar and subject to Senegalese law, prior experience of the relevant laws would be advisable or at least an acquaintance with the legal space in which the arbitration will be operating.
The law of the seat is notably relevant for potential set-aside proceedings, status and scope of the applicability of the New York Convention or other relevant treaties, and any other mandatory requirements with which international arbitrators will not be familiar. Similarly, as regards the substantive laws, in many French-speaking African countries, there is quite often a specific legal framework relating to natural resources sectors, and in particular the petroleum and mining sectors.
Second, and this is related to the first point, there is a tendency for parties originating from French-speaking Africa to sometimes pick arbitrators who have a good reputation locally (lawyers, former judges or law professors). This may make complete sense when the arbitrator is the only individual on the three-member panel to have the knowledge and practical experience of the relevant laws (of the seat or the substance of the dispute). However, we have come across many such instances during the past decade when this has proved not to be entirely effective.
In the context of an arbitration initiated against a German multinational company, conducted under the aegis of the CCJA and seated in Abidjan, the claimant, a Congolese national assisted by Congolese counsel, had thought it relevant to appoint as arbitrator a former bâtonnier of the Ivory Coast.
It was most likely a choice influenced by the presumed ability of the former bâtonnier to influence the panel, in particular because he would have been the only individual to be well versed in the relevant laws. However, it quickly became clear that this arbitrator, although he did undeniably have some natural authority, lacked arbitration experience. He did not participate at all in the hearings, asked no questions and is likely to have been of little assistance to the panel when it came to drafting the final award.
Selecting arbitrators with a reputation in the local market reflects a more traditional approach that has been, in our experience, predominant for a long time in French-speaking African countries, and was clearly a cultural consideration that advocates had to bear in mind when presenting their arguments to a panel of arbitrators with different backgrounds. However, things are moving in a different direction nowadays, and towards harmonisation, as African parties favour technical and experienced arbitrators with specific sector expertise and acquaintance with the applicable laws. The good news is that the pool of arbitrators available locally and who would meet these criteria is also increasing significantly.
Oral submissions and management of oral evidence
Whether we are in a French-speaking African context or not, the efficiency and smooth running of the arbitration primarily depends on the quality of the arbitrators but also on the degree of sophistication and experience of the parties and their counsel. One well-known arbitrator noted what has become a famous saying: ‘Tant vaut l’arbitre, tant vaut l’arbitrage.’ The respected Pierre Lalive extended this to the parties’ counsel and one can only subscribe to both propositions.
For most of French-speaking Africa, oral pleadings generally follow the same legal traditions as in other civil law jurisdictions. In particular, the oral aspects of the proceedings are not emphasised as much as they would be in a common law context. It is therefore not unusual to see experts and witnesses relegated to a secondary role.
In a case quite recently brought before the CCJA, one party had decided to request a law professor to clarify a point of local law crucial to the resolution of the dispute. The opposing party objected to this request by arguing that the CCJA’s Arbitration Rules, in the 1999 version, did not explicitly provide for the recourse of the parties to an expert, which is true. Indeed, the Rules only explicitly provided that arbitrators may have recourse to such experts.
Counsel’s objection did not reflect so much a lack of sophistication – he was otherwise quite brilliant and effective – but had a cultural bias that reflected the way in which court proceedings are handled in civil law countries. In those instances, and unlike common law jurisdictions, witnesses and experts are often called to testify in very specific instances.
Another cultural consideration in French-speaking Africa is that parties may not be used to the intricacies of cross-examination. This can derail the arbitration proceedings.
In an investment dispute in which a West African government was respondent, the claimant had decided to have a certified accountant testify and had submitted a lengthy affidavit from this witness. The claimant’s counsel, of a civil law background, apparently did not consider so carefully the conditions under which his witness could be heard. Indeed, in civil law courts, not only is it extremely rare to hear witnesses but, if they are heard, they are unlikely to be cross-examined.
In other words, from the claimant’s counsel point of view, it was the written testimony that mattered. He therefore did not fully consider what the cross-examination would entail and consequently did not prepare his witness, as common law or arbitration practitioners would automatically do. This proved to be disastrous in this case as the accountant had not yet obtained his certification at the time he signed his affidavit. Despite having covered various topics in his affidavit, it was clear on cross-examination that he had not even reviewed the relevant documents and was thus not sufficiently familiar with the issues at stake. In the end, the tribunal placed no reliance on that affidavit, which was struck off the record.
It is finally worth noting that arbitrators with a French-speaking African background – although that reflects a general attitude of arbitrators with a background in civil law training – are generally less interventionist than their common law counterparts. This is notably true in the context of cross-examination, the use of leading questions and the like.
Written pleadings are the sacrosanct aspect of legal proceedings in French-speaking Africa. This is a key cultural consideration and comes as no surprise considering that civil law traditions are predominant in these countries. From the practitioner’s perspective, written pleadings constitute the main means of persuasion while oral advocacy is to some extent secondary and treated more as a superfluous exercise. This explains why certain practitioners are still reluctant to use transcripts, let alone have recourse to the use of a transcriber during oral hearings.
Importantly, one other cultural consideration is the lack of familiarity with the concept of disclosure and the document production stage, which is almost always present in any draft procedural order communicated by the arbitral tribunal in the early stages of the proceedings. We have encountered several arbitrations in which parties and their counsel were wholly unfamiliar with that process and ended up making the wrong decisions by refusing to produce documents. This would not necessarily have been because there was a deliberate intent to withhold documents and information that were unfavourable to the outcome of their case but simply because disclosure is not a common feature of civil law jurisdictions and French-speaking African countries. The reluctance of parties to produce documents may thus be explained by this cultural difference, and we have been witness to several cases in which arbitral tribunals have drawn adverse inferences against parties that had a good case on the merits.
Situations such as we have described above arise because parties and their counsel were not well versed in international arbitration practices. However, there has been a noticeable diminution of those differences, and while they will – and should – continue to exist to a certain extent, the wide acceptance of international arbitration as a peaceful means of resolving commercial and international law conflicts is no longer in question. That applies to French-speaking Africa as well, where much progress has been made. It is thus just a question of time before modern international arbitration practices are reflected in all quarters.
The famous French anthropologist and philosopher Claude Lévi-Strauss was a firm supporter of cultural diversity as the source of all creation and progress. He was dead right and modern international arbitration practice is squarely a field that has been shaped and inspired by various cultural approaches, and which has benefited from the best of many spheres.
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