The second of the three-part series of international arbitration conferences organised by the Chartered Institute of Arbitrators (CIArb) in Johannesburg took place on 19 - 20 July.
Bringing together rich and inspiring discussions among practitioners representing different legal traditions and diverse backgrounds, the conference proved to be an intellectually stimulating experience.
Examining the topic of “The Synergy and Divergence between Civil and Common law in International Arbitration”, the conference focused on the thriving economic region of Africa, with its unique mix of civil, common, Islamic and customary laws.
The panel of speakers included distinguished names from across Africa, representing all those involved in international arbitration, from law makers to judges, academics and legal practitioners.
- the Nigerian Minister of Justice, His Excellency Mr Abubakar Malami SAN;
- the Chief Judge of Nigeria, The Honourable Justice Ishaq Bello;
- Judge of the Supreme Court of Zambia, Justice Charles Kajimanga;
- Judge Joyce Aluoch, Judge of the International Criminal Court and former Judge of the Court of Appeal in Kenya.
Professor Dr Nayla Comair-Obeid, President of the CIArb opened the conference, which was followed by a keynote address given by Mr John Jeffery, Deputy Minister of Justice in South Africa.
The panellists brought insightful views on the approach to arbitration in their jurisdictions and developed a number of ideas on how to bridge the gap between civil and common law in international arbitration.
The first panel focused on the role of legislation in developing an “arbitration-friendly” seat. Although Africa has made significant strides in adopting “arbitration-friendly” legislation, due to differences between UNCITRAL and OHADA laws, parties are still reluctant to choose African countries as their seat of arbitration.
On the second panel, Justices from South Africa, Nigeria, Kenya, Zambia and Uganda, discussed the judiciary’s approach to arbitration in their respective countries, all of which are signatories to the New York Convention 1958.
Overall, the judges on this panel demonstrated a very positive approach to arbitration, as well as due consideration for the core principles of international arbitration such as party autonomy and kompetenz-kompetenz. Save for divergent interpretations of the principle of ‘public policy’, most fundamental principles of arbitration were recognized by those present.
The third panel focused on the drafting of arbitration clauses and on strategic choices for an efficient and cost-effective arbitration process. A consensus emerged among the panellists that the choice of substantive law and the choice of the seat were two critical elements to be considered when drafting arbitration clauses.
The legal traditions, cultures and backgrounds of arbitrators were all important factors influencing lawyers’ strategic choices when targeting their clients’ needs.
The fourth panel of the conference offered an institutional perspective on the civil-common law division. In providing neutral support, arbitral institutions handle any divergences by providing rules flexible enough to enable arbitrators to use the procedural techniques specific to their legal tradition.
The key need is to ensure an efficient administration of a flexible, fair and transparent arbitration process.
On the fifth panel, various case studies were presented on the telecommunications, mining and construction sectors with a thought-provoking address from Professor David Butler on arbitration clauses in commercial contracts with South African state-owned entities.
The case studies showed that divergences in the approach to the procedure and to the application of substantive law can impact the outcome of a given case, hence the need for harmonisation.
The sixth panel discussion dealt with investment arbitration in the African context, where consent has been typically based on contract rather than treaty.
In recent years, however, African countries have increasingly entered into bilateral investment treaties (BITs).
Areas of divergence can be noted in these BITs:
- in the drafting of the treaty, the common-civil law division is pertinent in the test to determine the nationality of a company from a treaty-shopping perspective;
- in the approach to arbitrability taken by arbitral tribunals, which can be influenced by the legal tradition to which arbitrators belong (for instance in the handling of corruption claims);
- in the content of national law which is sometimes less accessible to an arbitrator from a different legal tradition.
The common-civil law divide is also apparent in the introduction of new procedural mechanisms such as moral damages in investment arbitration. Arbitral tribunals appear to have overcome the divergence by reshaping the concepts to make them more neutral, at both a substantive and a procedural level.
However, in order to avoid creating unbalanced situations, these considerations need to be kept in mind when reshaping the content of investment treaties in South Africa and more generally on the African continent.
The cognitive biases of counsel were addressed by the seventh panel, in particular the tendency of those trained in a particular legal system to resolve cases in a way most familiar to them rather than by adopting the best and most efficient way to resolve cases.
Several divergences between common and civil law approaches were noted including the emphasis on written evidence as opposed to witness statements in common law systems; divergent approaches to the allocation of costs; and the importance of the terms of reference in a classic civil law jurisdiction as opposed to common law jurisdictions.
In this regard, counsel can rely on key arbitration guidelines such as the ones provided by the CIArb and the IBA, both crucial points of reference for a harmonised approach to arbitral proceedings.
The final panel looked at the role of arbitrators as fact-finders and in ascertaining the applicable law. With regard to substantive issues, unlike national courts, arbitrators can take a flexible approach, because they are inherently more inclined to rely on comparative law and are much less strictly bound by the terms of applicable law.
The ability of arbitrators to rely on procedural rules such as the IBA Rules on the Taking of Evidence which provide guidance for dealing with document production and fact witnesses, in conjunction with institutional or ad hoc rules, enable parties to tailor the process.
Finally, the differences arising from contractual immunity, mostly adopted in civil law countries, and legal immunity, which apply in common law countries, were noted; with a set of neutral rules to bridge the gap emerging from principles such as the CIArb Centenary Principles.
The highly-subscribed conference was brought to a close by Dr Nayla Comair-Obeid, who recommended a Working Group of African countries to analyse the similarities and differences between the various arbitration frameworks in Africa, such as that of the UNICTRAL Model Law and the OHADA Uniform Act on Arbitration, in order to find common ground and best practices.
The role of education and training, particularly for national judges, was also highlighted as crucial in raising awareness of arbitration and its benefits to the economy and the judicial system.
Dr Comair-Obeid stressed the key role education had to play in influencing the underlying attitudes towards different legal traditions that stand in the way of achieving harmonisation and highlighted the work of CIArb in leading the effort.
The final conference in the International Arbitration series takes place in Paris from 7 - 8 December.