22 SPECIAL REPORT
INTERNATIONAL ARBITRATION 1/3LY
CONCLUSION The battle to establish effective alternative dispute resolutionmechanisms in Africa is being fought on two fronts. First, jurisdictionsmust put in place the requisite legislation, rules and infrastructure. Second, an education programme, encompassing judiciary, lawyers and users, is clearly needed to ensure that arbitration and other forms are utilised and to limit the potential for abuse and corruption. Our experience suggests that many centres and jurisdictions are approaching these challenges with a high degree of dynamismwhich is yielding incremental progress. In the short tomedium terms there are still challenges to be surmounted. However, in the long term, the future of African arbitration seems bright and this fledgling African industry is likely to increase the attractiveness of the continent as a destination for foreign trade and investment.
ROOM FOR IMPROVEMENT Considerable progress is beingmade but new African centres are developing amidst a difficult and often hostile climate. Hence, there is still a long journey ahead for jurisdictions whichwould invent themselves as hubs for international dispute resolution. Unwelcome intervention by local courts andwider acceptance by users are just two of the hurdles which need to be overcome before foreign investors are prepared to subscribe to dispute resolution clauses providing for African seated arbitrations in greater numbers. Although the legal community in Africa is working hard to bridge the gap, there are still cases which act as reminders of the challenges faced. Notorious examples include the admission of a challenge by a non-party to an arbitration agreement in one West African jurisdiction, while in East Africa a national court, apparently in clear breach of the ICSID Convention, issued an injunction to prevent the continuation of ICSID proceedings. While such examples persist, there is still a role for established offshore centres such as the LCIA and the ICC. Another problem is lack of knowledge and understanding of the arbitral process by some users, which in some instances leaves themopen to exploitation by foreign investors under the system of arbitration. This problemwas highlighted following a case involving Chinese investors and a Kenyan party. The dispute relating to a Kenyan infrastructure project was resolved via arbitration proceedings in China, in the Chinese language and subject to Chinese law. The Kenyan party involved had unwittingly signed a contract to that effect, leaving it effectively unable to contest its rights. Cases such as these have a deleterious effect on the reputation of arbitration among local businesses. However, both Duncan Bagshawand Bernadette Uwicyezawere of the view that the case has helped to raise the issue of dispute resolution clauses in contracts and local parties are nowpayingmore attention to the content of these clauses.
ALTHOUGH THE LEGAL COMMUNI T Y IN AFRI C A I S WORK ING HARD TO BRIDGE THE GAP, THERE ARE S T ILL C A SES WHI CH ACT A S REMINDERS OF THE CHALLENGES FACED.
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