Herbert Smith Freehills launches ground-breaking Guide to Dispute Resolution in Africa

On 19 March 2013, at a seminar in London attended by over 150 delegates, specialists from across our award-winning Africa practice addressed latest trends, practical workarounds and handling risk in Africa. At the event, Herbert Smith Freehills launched its groundbreaking Guide to dispute resolution in all 54 of Africa's diverse jurisdictions. To access an extract of the guide, please click here. If you would like to request a copy please email africadisputes@hsf.com.

Background

Our Africa practice comprises one of the largest teams of common law and civil law lawyers which, over the past 30 years, has been advising commercial clients on all aspects of investment and risk across almost all of the continent's countries. In producing the Guide, we have drawn on the combined knowledge and experience of Africa practice lawyers in both our London and Paris offices, as well as qualified and experienced local counsel in each of the jurisdictions covered. The Guide has been published in tandem with the planned launch of our office in Conakry, Guinea, which will be the firm's first on-the-ground presence on the continent.

Each country chapter of the Guide considers aspects of civil procedure before the local courts and the laws and procedures in relation to arbitration, including their possible impact on arbitrations seated within the jurisdiction and "off-shore". The arbitration sections of the Guide were produced by arbitration specialists in London and Paris in conjunction with local law firms in each of the 54 jurisdictions.

Arbitration

Each Chapter of the Guide addresses key arbitration issues for the relevant jurisdiction including the local arbitration laws, attitude of the judiciary, interim relief, "appeal" processes and enforcement. In doing so, it highlights the noticeable differences amongst countries and sub-regions in the continent- themes with which the firm's Africa Group is familiar.

The Guide points to the different approaches taken across the continent in introducing Arbitration laws: ten African jurisdictions have based their arbitration laws on the UNCITRAL Model Law, including arbitral hub Egypt; 17 OHADA member states have adopted the Uniform Arbitration Act; while other jurisdictions (such as Ghana) have chosen to introduce arbitrations laws which, like the English Arbitration Act 1996, are not based on the Model Law. However, the Guide also demonstrates the need to consider each jurisdiction independently: even within the 10 UNCITRAL Model Law countries, significant and important changes have been made by certain jurisdictions when incorporating it into the national legislation. The importance of experienced and expert advice in this area cannot be underestimated.

What is also apparent from many of the chapters of the Guide is that courts in Africa are overwhelmingly aware of arbitration and the local law generally provides for the courts to stay litigation brought in breach of an arbitration agreement, whether the seat is within or outside the jurisdiction. However, the Guide also provides a fascinating and helpful insight into the practical realities and the extent to which courts will refuse to exercise such discretion. For example, whilst the legislation in Sierra Leone does provide for courts to grant a stay in favour of arbitration, the practice of the judiciary is to treat arbitration more like a court of first instance and to refuse to grant a stay where an arbitration clause expressly or impliedly ousts the jurisdiction of the High Court.

In relation to enforcement, 32 of Africa's 54 jurisdictions have ratified the New York Convention, the most recent being Sao Tomé e Principe in February 2013. For most New York Convention signatory jurisdictions, contributors report that foreign awards are readily enforceable in practice. However, it is worth bearing in mind that local courts may apply the grounds under Article V of the New York Convention somewhat differently, in particular the reference to "public policy".

The Guide also provides an overview of investment protections which are significant in the context of Africa, a continent where foreign investors are conscious of a risk profile which may exceed their usual risk tolerance.