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Reimagining the Framework for Resolving Intra-African Commercial Disputes in the Context of the African Continental Free Trade Area Agreement

Published online by Cambridge University Press:  04 July 2019

Emilia Onyema
Emilia Onyema*
Affiliation:
SOAS University of London, UK
*
*Email: [email protected]
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Abstract

This article examines the effectiveness of the framework for the resolution of intra-African cross-border commercial disputes, arising from the projected increase in intra-African trade in goods, services, and investments under the African Continental Free Trade Area. It examines the peculiar nature of intra-African trade and of the participating entities to provide the context to discuss the three major processes adopted in commercial dispute resolution (litigation, mediation, and arbitration) in Africa. It then argues for the promotion of arbitration as the dispute resolution process of choice for such disputes. It reimagined the framework for arbitration at the continental level and made two proposals targeted at the greater efficiency of the process: the designation of Regional Arbitration Centres across the African Union's eight recognized Regional Economic Communities, to administer such references; and the establishment of an African Commercial Court as a one-stop court for the enforcement or annulment of the final award.

Type
Research Article
Information
World Trade Review , Volume 19 , Issue 3 , July 2020 , pp. 446 - 468
Copyright
Copyright © Emilia Onyema 2019

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References

1 There are 54 African states but the AU recognizes the Western Sahara as a member state, bringing its member states to 55. The AfCFTA signatory states are listed in Table 3 below.

2 The Continental Free Trade Area is one of the 12 flagship projects/initiatives of the African Union (AU) for the implementation of its Agenda 2063 adopted at the 50th anniversary of the AU on 13 June 2013. Agenda 2063 sets out the aspirations of African states’ leaders for the transformation of the continent and its peoples over the next 50 years. See for more information: https://au.int/en/agenda2063 (accessed 26 July 2018).

3 These five states are: South Africa, Sierra Leone, Namibia, Lesotho, and Burundi. The 31st African Union Summit concluded on 2 July 2018.

4 In accordance with art. 24 of the AfCFTA Agreement. The six ratifications are by: Kenya, Ghana, Rwanda, Niger, Chad, and Swaziland.

5 The Protocols on Trade in Goods, Trade in Services, and the Rules and Procedures on the Settlement of Disputes were agreed. Phase 2 of the negotiations, which commenced in August 2018, will focus on investment, competition policy, and intellectual property rights.

6 The barriers are tariffs, non-tariff barriers, and non-tariff measures, which include the use of quotas, embargoes, sanctions, and licenses that impede the free flow of trade in goods and services across African states.

7 Preamble to the AfCFTA.

8 Preamble to the AU 2063 Agenda titled, The Africa We Want, with the vision of, ‘an integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in international arena’.

9 Art. 3 of the Protocol.

10 On investment dispute settlements, see, for example, Dolzer, R. and Schreuer, C., Principles of International Investment Law (2nd edn, Oxford University Press, 2012)Google Scholar. We note the current backlash against the investor-state dispute settlement of arbitration and the different proposals on fixing or abandoning the mechanism. See UNCITRAL Working Group III: Investor State Dispute Settlement Reform, documents at https://uncitral.un.org/en/working_groups/3/investor-state (accessed 17 December 2018).

11 R. Longo and K. Sekkat, ‘New Forms of Co-operation and Integration Emerging in Africa: Obstacles to Expanding Intra-African Trade’, OECD Technical Working Paper No. 169, 29 March 2001, p. 10. Their study was based on dataset from 41 African countries between 1989 and 1997.

12 On the impact of trade policy (and other issues) on the growth of African trade, see the various contributors in Low, P., Osakwe, C., and Oshikawa, M. (eds.), African Perspectives on Trade and the WTO: Domestic Reforms, Structural Transformation and Global Economic Integration (Cambridge University Press, 2016)CrossRefGoogle Scholar.

13 The World Trade Organisations (WTO) recent Trade Facilitation Agreement will assist with reducing governmental ‘red tape’ through the ‘simplification, modernisation and harmonisation of export and import processes’ of its member States which will fix some of the NTBs but not some of these enumerated endemic barriers to intra-African trade. For the WTO trade facilitation regime, see www.wto.org/english/tratop_e/tradfa_e/tradfa_e.htm (accessed 26 July 2018).

14 See, for example, Sornarajah, M., The International Law on Foreign Investment (3rd edn, Cambridge University Press, 2012)Google Scholar, at p. 310, for the need for developing countries to maintain their balance of payments safeguard in the context of foreign investors repatriating their profits to their home states.

15 See, for example, the United Nations Economic and Social Council (UNESCO) 2015 Progress Report on Intra-African Trade, http://repository.uneca.org/bitstream/handle/10855/22959/b11553832.pdf?sequence=1 (accessed 26 July 2018).

16 Nigeria has not yet (but is expected to) signed the Agreement.

17 The United Nations Commission on Trade and Development (UNCTAD) had proposed that the WTO DSM mechanism system should be adopted under the AfCFTA. See UNCTAD Publication, ‘African Continental Free Trade Area: Policy and Negotiation Options for Trade in Goods’ (2016), http://unctad.org/en/PublicationsLibrary/webditc2016d7_en.pdf (accessed 26 July 2018).

18 According to arts. 6 and 7 of the AfCFTA, the Agreement covers trade in goods, trade in services, investment, intellectual property rights, and competition policy, with a protocol for each (including the Protocol on the Rules and Procedures for the Settlement of Disputes) when negotiated to be annexed to the Agreement.

19 For example, art. 4 imposes tasks on the state parties of the AfCFTA, which will lead to the realization of the objectives of the Agreement as set out in art. 3 AfCFTA.

20 Art. 21 of the AfCFTA expressly states that the DSM, ‘shall apply to the settlement of disputes arising between the State Parties’.

21 One example is from the Banana disputes where it was acknowledged that individual exporters were pursuing the claim. On the dispute, see www.wto.org/english/tratop_e/dispu_e/cases_e/ds27_e.htm (accessed 26 July 2018).

22 United Nations Conference on Trade and Development (UNCTAD), African Continental Free Trade Area: Policy and Negotiation Options for Trade in Goods, UNCTAD/WEB/DITC/2016/7 at p. 14.

23 See, for example, the research paper: H. Thompson, B. Shepherd, G. H. Welch, and A. Anyimadu, ‘Developing Businesses of Scale in Sub-Saharan Africa: Insights from Nigeria, Tanzania, Uganda and Zambia’, The Royal Institute of International Affairs, Chatham House, September 2017, which identified, ‘limited access to mid-scale finance for SMEs, a lack of capable managers, poor infrastructure, a constrained pool of skilled workers and corruption’ as common constraints to businesses in the countries they studied.

24 According to a 2016 study by McKinsey Global Institute, 56% of the largest companies in Africa are wholly owned by Africans and these operate in the food and agricultural sector. State-owned enterprises account for 17% of these companies and operate mainly in resources, utilities, and transportation sectors. The remaining 27% are foreign-based multinational corporations. See https://qz.com/782196/mckinseys-africa-2016-report-highlights-africas-fast-growing-corporate-companies/ (accessed 26 July 2018).

25 See the various stock exchanges in Africa for the list of some of these corporations.

26 See www.forbes.com/sites/montymunford/2017/10/18/these-are-the-top-african-tech-startups-you-need-to-know-about/2/#439b2e8b1983 (accessed 26 July 2018).

27 According to a 2017 study published under the IMF Working Papers series by, L. Medina, A. Jonelis, and M. Cangul, ‘The Informal Economy in Sub-Saharan Africa: Size and Determinants’, WP/17/156. The authors applied the light density approach and the predictive mean matching method to measure the size of the informal economies of Sub-Saharan African countries over 24 years and found that the sizes ranged from 20% to 65%. For more details, see www.imf.org/en/Publications/WP/Issues/2017/07/10/The-Informal-Economy-in-Sub-Saharan-Africa-Size-and-Determinants-45017 (accessed 26 July 2018).

28 See for an example of the definition of the informal sector, the International Labour Organisation (ILO), www.ilo.org/ilostat-files/Documents/description_IFL_EN.pdf (accessed d 26 July 2018).

29 See, for example, H. Thompson, B. Shepherd, G. H. Welch, and A. Anyimadu, ‘Developing Businesses of Scale in Sub-Saharan Africa: Insights from Nigeria, Tanzania, Uganda and Zambia’, Chatham House Research Paper, www.chathamhouse.org/publication/developing-businesses-scale-sub-saharan-africa-insights-nigeria-tanzania-uganda-zambia (accessed 26 July 2018).

30 For some examples, see Part VII of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Chapter 11 of the 1992 Constitution of Ghana; Title VI of the 1990 Constitution of Benin Republic; Chapter 10 of the 2010 Constitution of Kenya; and Part 3 of Chapter 3 of the 2012 Constitution of Egypt.

31 One notable exception is Rwanda. According to the World Bank ‘Ease of Doing Business’ report, 2018, it takes 280 days from the filing of a dispute to the payment of the judgment sum. See www.doingbusiness.org/data/exploreeconomies/rwanda#enforcing-contracts (accessed 26 July 2018).

32 For example, in the Francophone countries of Benin Republic, Mali, and Cote d'Ivoire.

33 For example, Kenya, Uganda, Ghana, and Nigeria.

34 For example, South Africa.

35 For example, Gambia and Mauritania.

36 Notably, under the OHADA regime with the Common Court of Justice and Arbitration.

37 The 17 OHADA member States are: Benin, Burkina Faso, Cameroon, Central Africa Republic, Chad, Comoros, Congo Brazzaville, Congo, Cote d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Niger, Senegal, and Togo.

38 On OHADA, see Onyema, E., ‘Arbitration under the OHADA Regime’, International Arbitration Law Review (2008), p. 205Google Scholar; R. Beachard and M.J.V. Kodo, ‘Can OHADA Increase Legal Certainty in Africa?', http://documents.worldbank.org/curated/en/266761467990085419/Can-OHADA-increase-legal-certainty-in-Africa (accessed 26 July 2018).

39 In almost all African countries, one or more language has been adopted as the formal language, with English, French, Portuguese, and Arabic spoken in different states.

40 Some of these non-legal barriers include ease (or lack thereof) of movement across African borders; distrust based on ethnicity and political affiliations; and preference for all that is Western and what is popularly and colloquially referred to as ‘colonial mentality’.

41 This Hague Convention has only been ratified by five countries and entered into force on 20 August 1979.

42 This Hague Convention has 35 contracting parties and came into force on 1 October 2015.

43 The ten areas of business law so far regulated are: law of cooperative societies; general commercial law; law of commercial companies and economic interest groups; law of secured transactions and guarantees; simplified recovery procedures and measures of execution; collective proceedings for clearing of debts; arbitration law; mediation law; organization and harmonization of accounting firms; and contract of carriage of goods by road.

44 In accordance with art. 34 of the Treaty for the Establishment of East African Community, 1999 (as amended).

45 In accordance with art. 30 of the EAC Treaty.

46 In accordance with art. 32 of the EAC Treaty.

47 Such processes are conciliatory in outlook though mediation is the best known of such processes.

48 The third party neutral is usually referred to as a mediator and can adopt a facilitative or interventionist approach. Roberts and Palmer, in distinguishing between the arbitrator and mediator note, ‘Whereas the arbitrator assumes power to make decisions for the parties to a dispute, no such power is surrendered to the mediator; ultimate control over the outcome remains with the parties themselves. But this line may be obscured in real-life processes, particularly where the rank or posture of the intervener may make the nature of the intervention, and hence the location of power over an outcome, appear uncertain’. See Roberts, S. and Palmer, M., Dispute Processes: ADR and the Primary Forms of Decision-Making (2nd edn, Cambridge University Press, 2005)CrossRefGoogle Scholar, at p. 158.

49 See, for example, Attah-Poku, A., African Ethnicity, History, Conflict Management, Resolution and Prevention (University Press of America, 1998)Google Scholar; Elias, T. O., The Nature of African Customary Law (Manchester University Press, 1956)Google Scholar.

50 Such enforcement measures included ostracization, which was effective because of the close communal interaction of members of such communities.

51 The community here refers to the group of traders or business entities engaged in the same trade.

52 UNCITRAL, in recognition of this limitation of settlement agreements, recently agreed the text of the United Nations Convention on International Settlement Agreements Resulting from Mediation 2018. In addition, UNICTRAL published a Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the Model Law on International Commercial Conciliation, 2002).

53 See section 4 (b) of the Lagos State Multidoor Court Law 2007, www.lawnigeria.com/RULES-OF-COURTS/LAGOS-STATE-MULTIDOOR-COURT-LAW.html (accessed 26 July 2018).

54 The text of a Draft Convention was agreed on 26 June 2018 at the 51st Session of UNCITRAL by Working Group II, for the enforcement of international commercial settlement agreements resulting from mediation. See the latest documents from the Working Group deliberations at https://documents-dds-ny.un.org/doc/UNDOC/GEN/V18/008/77/PDF/V1800877.pdf?OpenElement (accessed 26 July 2018).

55 See notice at https://icsid.worldbank.org/en/Pages/process/adr-mechanisms--mediation.aspx (accessed 26 July 2018) making reference to the International Bar Association (IBA) Rules for Investor-State Mediation, 2012.

56 OHADA Uniform Act Relating to Mediation 2017 and entered into force on 15 March 2018.

57 EU Mediation Directive 2008/52/EC, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32008L0052&from=en (accessed 26 July 2018).

58 See the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002), www.uncitral.org/pdf/english/commissionsessions/51st-session/ACN9-943_advance_copy_website.pdf (accessed 26 July 2018).

59 Arbitration awards generally have res judicata effects but are still subject to enforcement and annulment proceedings, though on limited grounds. See, for example, Blackaby, N. and Partasides, C., with Redfern, A. and Hunter, M., Redfern and Hunter on International Arbitration (6th edn, Oxford University Press, 2015), pp. 559–560Google Scholar.

60 For the position under the laws of various African states, see Miles, J., Fagbohunlu, T., and Shah, K., Arbitration in Africa: A Review of Key Jurisdictions (Sweet & Maxwell, 2016)Google Scholar; and Bosman, L. (ed.), Arbitration in Africa: A Practitioner's Guide (Kluwer Law International, 2013)Google Scholar.

61 National arbitration laws also set out the grounds for such challenge. See. for example, arts. 34 and 36 of the UNCITRAL Model Law.

62 The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958 with text, https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/new-york-convention-e.pdf (accessed 17 December 2018). There are 159 member states as at December 2018.

63 Onyema, E., ‘The Jurisdictional Tensions between Domestic Courts and Arbitral Tribunals’, in Menaker, A. (ed), International Arbitration and the Rule of Law: Contribution and Conformity (Kluwer Law International, 2017), pp. 481–492Google Scholar.

64 The Queen Mary International Arbitration surveys are published every two years and are available at www.arbitration.qmul.ac.uk/research/ (accessed 26 July 2018).

65 For the 2006 Queen Mary International Arbitration survey, see www.arbitration.qmul.ac.uk/research/2006/ (accessed 226 July 2018).

66 For the 2018, Queen Mary International Arbitration survey, see www.arbitration.qmul.ac.uk/research/2018/ (accessed 26 July 2018).

67 SOAS Arbitration in Africa Survey, Domestic and International Arbitration: Perspectives from African Arbitration Practitioners 2018, http://eprints.soas.ac.uk/25741/ (accessed 26 July 2018).

68 Ibid.

69 2006 Queen Mary International Arbitration survey.

70 Ibid. This effectively puts to rest the assertion that international arbitration is faster and cheaper than litigation, although in most African jurisdictions, international arbitration will still be faster than litigation but certainly not cheaper.

71 See, for example, L. Medina, A. Jonelis, and M. Cangul, ‘The Informal Economy in Sub-Saharan Africa: Size and Determinants’, IMF Working Paper No WP/17/156, file:///C:/Users/eo3/Downloads/wp17156.pdf (accessed 26 July 2018).

72 See, for example, arts. 19 (rules of procedure), 22 (language), 28 (rules on the substance) of the UNCITRAL Model Law.

73 See, for example, art. 11 of the UNCITRAL Model Law.

74 These are the sorts of transactions envisaged under the AfCFTA.

75 The Convention became effective in Sudan in June 2018. For a list of all African state parties to the New York Convention, see Table 2.

76 For the status and text of the New York Convention, see www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html (accessed 26 July 2018).

77 In accordance with art. II of the New York Convention.

78 In accordance with art. I of the New York Convention, and this extends to, ‘arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought’ (English translation).

79 There is no African State that is party to either the 1971 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, or the 2005 Hague Convention on Choice of Court Agreements, which came into force on 1 October 2015.

80 See, for example, the chapter on Nigeria by Babatunde Ajibade and Benedict Oregbemhe in the International Comparative Legal Guide to Enforcement of Foreign Judgements, 2016, www.spaajibade.com/resources/wp-content/uploads/2016/03/EFJ16_Chapter-23_Nigeria.pdf (accessed 26 July 2018).

81 For example, for New York Convention awards, see art. IV.

82 See for analyses of the attitudes of the courts of some African States on the enforcement of arbitral awards, the various contributors in E. Onyema (ed.), Rethinking the Role of African National Courts in Arbitration (Kluwer Law International, 2018).

83 Such a measure by a state may include failure to grant national treatment, fair and equitable treatment, most favoured nation treatment, and full security to the investment of the foreign investor.

84 For the definition of an investment dispute, see, for example, Bishop, R. Doak, Crawford, J. R., and Reisman, W. M., Foreign Investment Disputes: Cases, Materials and Commentary (2nd edn, Kluwer Law International, 2014)Google Scholar, at p. 10.

85 For example, Global Telecom Holding SAE (Egyptian) v Canada, ICSID Case No. ARB/16/16.

86 See the ICSID Caseload: Statistics Special Focus on Africa (May 2017), at pp. 20–27, https://icsid.worldbank.org/en/Pages/resources/ICSID-Caseload-Statistics.aspx.

87 Ibid, at p. 13, notes that ‘in the 135 ICSID cases involving an African State party, 21% were commenced by an African investor’.

88 Negotiation of the Investment Protocol of the AfCFTA commenced in June 2018.

89 The Pan-African Investment Code was agreed under the auspices of the AU; for some commentary, see M. M. Mbengue and S. Schacherer, ‘The “Africanization” of International Investment Law: The Pan-African Investment Code and the Reform of the International Investment Law Regime’, 18, Journal of World Investment and Trade (2017), p. 414. The text of the draft PAIC is available at https://au.int/en/documents/20161231/pan-african-investment-code-paic (accessed 26 July 2018).

90 Examples are: The Investment Agreement for the COMESA Common Investment Area, signed 23 May 2007 and under revision; the Community Rules on Investment of the ECOWAS, signed 19 December 2008 and entered into force 19 January 2009; the SADC Protocol on Finance and Investment, signed 18 August 2006 and entered into force 16 April 2010; and SADC Model Bilateral Investment Treaty template published in 2012; and the EAC Model Investment Code drafted in 2002.

91 See Table 2 for a list of these national arbitration laws.

92 This is in the sense a similar agreement to the European Convention on International Commercial Arbitration of 1961, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-2&chapter=22&clang=_en (accessed 26 July 2018).

93 The Uniform Arbitration Act, 1999 was revised in November 2017, effective March 2018.

94 SOAS Arbitration in Africa Survey at p. 32.

95 See list of arbitration centres in Africa compiled by Dr Emilia Onyema of SOAS University of London at https://docs.wixstatic.com/ugd/ef6df1_a0f973bbbbb14c7b8d733ba7c58f6a0b.pdf (accessed 26 July 2018).

96 See details at http://crcica.org/NewsDetails.aspx?ID=28 (accessed 11 July 2018).

97 This information was provided by Dr Fidele Masengo the Secretary General of KIAC in the recently published KIAC caseload, www.kiac.org.rw/IMG/pdf/kiac_growing_caseload.pdf (accessed 26 July 2018).

98 For information on the NCIA, see https://ncia.or.ke/ (accessed 26 July 2018).

99 For information on the OHADA CCJA, see www.ohada.org/index.php/en/case-law (accessed 26 July 2018).

100 For information on the AFSA, see www.arbitration.co.za/pages/default.aspx (accessed 26 July 2018).

101 For information on the Lagos Regional Centre, See www.rcicalagos.org/ (accessed 26 July 2018).

102 AALCO is the Asia-Africa Legal Consultative Organisation, the sponsoring agency of the Cairo, Lagos, and Nairobi Regional Centres for International Commercial Arbitration in Africa. See for more information on AALCO: http://aalco.int/Scripts/default.asp (accessed 26 July 2018).

103 It is very encouraging that all of these centres (with the exception of the GAC) have dedicated and functioning websites. To this list can be included the new MCCI Arbitration and Mediation Centre in Mauritius.

104 See for a discussion on these issues as they relate to West Africa, Onyema, E., ‘Regional Arbitration Institution for ECOWAS: Lessons from OHADA Common Court of Justice and Arbitration’, 5, International Arbitration Law Review, (2014) 99Google Scholar at pp. 109–111.

105 For the 2015 Addis Ababa SOAS Arbitration in Africa conference discussion paper, See http://eprints.soas.ac.uk/20421/ (accessed 26 July 2018).

106 The second SOAS Arbitration in Africa conference, hosted by the Lagos Court of Arbitration centre in 2016 explored how judges can better support the development of arbitration in Africa and the discussion paper isavailable at http://eprints.soas.ac.uk/22727/ (accessed 26 July 2018).

107 See, for example, E. Torgbor, ‘Overview of the disposition of Courts towards Arbitration in Africa’ and L, Tameru, ‘Publication and Access to Arbitration Related Decisions from African Courts’, both in Onyema (ed.), Rethinking the Role of African National Courts in Arbitration, supra n. 82, at p. 39 and p. 67 respectively.

108 The fourth SOAS Arbitration in Africa conference hosted by the Kigali International Arbitration Centre in Kigali in 2018 explored how arbitration practitioners can support the development of arbitration in Africa. See https://docs.wixstatic.com/ugd/ef6df1_86bf8269d9a74e6b9a9bc02a7098e204.pdf (accessed 26 July 2018).

109 SOAS Arbitration in Africa Survey, pp. 23–24.

110 Ibid, pp. 17–19.

111 The International Council for Commercial Arbitration (ICCA) held its first congress in Africa in Mauritius on the theme, ‘International Arbitration and the Rule of Law: Contribution and Conformity’ from 8–11 May 2016. Details of the conference are available at www.iccamauritius2016.com/Default.aspx (accessed 26 July 2018).

112 For more information on the AfAA, see http www.africanarbitrationassociation.org/ (accessed 26 July 2018).

113 The following suggestions build on my publication, Onyema, E., ‘Regional Arbitral Institution for ECOWAS: Lessons from OHADA Common Court of Justice and Arbitration’, 5, International Arbitration Law Review (2014), at 99Google Scholar.

114 According to the data collected by the author in 2015, there were then 71 arbitral centres in 39 African states leaving 15 states without any known arbitral centres, see www.researcharbitrationafrica.com/arbitration-institutions-in-africa (accessed 26 July 2018).

115 See Table 1 below for the list and membership of the eight RECs recognized by the AU.

116 See, for example, the joint publication by the Economic Commission for Africa (ECA) and the African Union (AU), ‘Assessing Regional Integration in Africa II: Rationalizing Regional Economic Communities’, 2006 at pp. 50–55, www.uneca.org/sites/default/files/PublicationFiles/aria2_eng.pdf (accessed 26 July 2018). The overlapping membership was described in the publication as the ‘spaghetti bowl’.

117 For information on CIMAC, see http://cimac.ma/ (accessed 26 July 2018).

118 For information on MCCI, see www.mcci.org/en/our-services/arbitration-mediation/arbitration/introduction-to-marc-arbitration/ (accessed 26 July 2018).

119 These centres are the most well known on the continent. However, such designations must be based on objective evidence of the experience of each centre to discharge the tasks of administering arbitration references to an international standard.

120 See, for example, the contributions in Part 2 in E. Onyema (ed.,) Rethinking the Role of African National Courts in Arbitration, supra n. 82.

121 Issues on court interference during the arbitral reference are excluded from this discussion.

122 SOAS Arbitration in Africa survey 2018, at p. 32, though the author of the survey notes that, ‘for complex disputes, most of these national laws will need to be reviewed and updated if they are to meet the expectations of contemporary arbitration disputants’.

123 As noted above under section 4.1, we disagree with this view from the survey respondents, but that is the evidence we currently have on the fitness of these national arbitration laws.

124 International awards may include foreign awards, which by their very nature may be domestic awards.

125 The revised OHADA Arbitration Act 2017 and the revised Arbitration Rules of the CCJA include very short time limits. For example, the CCJA will determine appeals on award challenges within six months from the date of referral according to art. 27 OHADA Uniform Act on Arbitration and art. 29 CCJA Arbitration Rules.

126 The African Court is currently a human and peoples’ rights court. See www.african-court.org/en/index.php/12-homepage1/1-welcome-to-the-african-court (accessed 26 July 2018).

127 The UNECA Report (2016), at p. 46, suggests, ‘The continent could consider a pan-African solution such as the African Court of Justice … (to) be used for the proposed Continental Free trade Area (CFTA).’

128 C. Nyombi, ‘Towards a New International Economic Order: Proposal for a Pan-African Investment Court’, in E. Onyema (ed.), Rethinking the Role of African National Courts in Arbitration, supra n. 82, at pp. 140–141.

129 In accordance with s. 43 of the International Arbitration Act of Mauritius, 2008 (amended 2013).

130 See for more information, Bagshaw, D., ‘The Experience of LCIA-MIAC’, in Onyema, E. (ed.), The Transformation of Arbitration in Africa: the Role of Arbitral Institutions (Kluwer Law International, 2016), p. 102Google Scholar.

131 Art. 20 OHADA Treaty 1993 (amended 2008).

132 In accordance with art. 44 of the EAC Treaty and Rule 72(2) of the EACJ Rules of Procedure.