INTERNATIONAL ARBITRATION 1/3LY
decades which we’re now trying to bridge. In a sense though, it both invites and challenges us to look at the situation in 2015 and to plan anew with the benefit of all of the experience of international arbitration developments throughout the rest of the world. We must also take regional developments into account, such as the recent incursion of China into Africa and the establishment of the BRICS, all of which have added new dimensions and opportunities. So if we’re a bit of a blank page, it’s quite exciting to write a new adventure in international arbitration. NICOLA Daniel, as a practitioner in the region is this consistent with your experience? DANIEL Yes certainly. I think that there is varying demand for matters to be referred to arbitration. The benefits of doing so are not limited to the short timeframe within which the process can be completed but extend to confidentiality. This makes it a very attractive proposition for our clients. NICOLA Michael, you’ve mentioned contact between Africa and China. MICHAEL Well it’s a very important development. China is by far the most active and supportive of the international investors and its influence has grown dramatically in the course of the last five years. It would make a lot of sense for China and Africa to join together in sharing an arbitral institution and AFSA has recently entered into a partnership arrangement with the Shanghai International Arbitration Centre to establish a joint administering authority for China-Africa disputes. This initiative, under the aegis of the China Law Society, is a significant further development in South Africa’s involvement in international arbitration. NICOLA That’s very interesting and I think that ties into a concern that some people in the UK and Europe are alive to, which is that the UK and Europe can’t rest upon their laurels, so to speak, as venues for international arbitration. Institutions in Singapore, Hong Kong and the Middle East are creating stiff competition for the so-called old guard of international arbitration, London and Paris. I think issues such as cost, geographical proximity, and even technology in these new arbitrations centres must be making commercial parties think twice about where to arbitrate their disputes, rather than simply defaulting to London or Paris.
However, there’s certainly been an expansion in the range of attorneys who recommend and participate in the process. It includes all sorts of firms, large and small, whether with white membership or black membership. It seems to be all inclusive and that is an encouraging trend. DANIEL Michael may I come in here and just say that our firm has as one of its goals to increase its footprint into Africa. We have an office now in Dar Es Salaam, an office in Cape Town and one in Johannesburg. We find that our international client base of insurers, mining companies and the like are increasingly looking to us to find solutions which enable them to resolve commercial disputes not only in South Africa but in countries outside of South Africa. MICHAEL The Centre has always held itself available to administer cross-border arbitrations. One of the first objectives it had was to spread throughout the region because whilst there were some arbitral institutions in North African countries, there was very little south of the Sahara. The AFSA has administered matters with some success in Namibia, Zambia and in various other African countries to the north of South Africa; and is trying to expand its footprint. Many of the disputes are very large – sometimes very complicated, sometimes routine – and we have a panel which is largely made up of retired judges and advocates. Additionally, we have a small but useful component of foreign arbitrators, including two Australian retired appeal judges, English practitioners and European practitioners, whom we use as needed because at the present time the number of international arbitrations compared to domestic cases is small. Perhaps 5% of our cases are cross- border. When such cases arise, they are dealt with as efficiently as possible in a country which has a poor international arbitral legislative infrastructure. This problem has dogged us for a long time when it comes to the international arbitration world but there are good initiatives underway. Owing to its chequered history, prior to transformation in 1994, South Africa was completely isolated and therefore had no international arbitration of any consequence, nor was it likely to be an international arbitration venue. Since that time, South Africa has developed a business community which dominates investment into Africa and one would have expected South Africa to become the engine room of international arbitration in the region.
We recognised this opportunity and entered into a partnership with another arbitral body in South Africa, the Association of Arbitrators, which has a very prominent construction arbitration mandate. Together we have established Africa ADR which specialises in cross-border arbitration. A PRACTITIONER’S PERSPECTIVE ON ARBITRATION IN SOUTH AFRICA: A NEW ADVENTURE NICOLA I want to ask you a little bit about the practice of arbitration in South Africa. My practice is commercial litigation and international arbitration. I am London based but get instructed by clients from all over the world because London arbitration is a very popular dispute resolution clause, particularly institutional arbitration, administrated by the LCIA or the ICC. We see that quite a lot in agreements between parties based all over the place. Now the practice of international arbitration in the UK and Europe is very elitist. It is a big money industry and I think it’s right to call it an industry: most law firms have specialist international arbitration teams; there are, particularly in Europe, boutique arbitration practices; and there are lots of institutions. There are also lots of articles being published and lots of conferences about arbitration. We’re witnessing ever more technical and academic consideration of arbitration as a transnational legal system. Can I ask you what the position is in South Africa by contrast? MICHAEL By contrast, in South Africa we’ve not had any well-established involvement in international arbitration, either in the attorneys’ profession or amongst Counsel. Naturally, we have various attorneys and members of the Bar who participate in arbitrations, but there is no stable established platform or industry, as you describe. To be exposed to international arbitration in South Africa in the present situation one would have to wait to be nominated by a South African party in an international arbitration, and such opportunities arise infrequently at best. So whether you’re talking about the attorneys’ profession or the advocates’ profession you’ve got to understand that there is a very sharp gap between what you call the vibrant international circuit of Europe and the situation in Africa. That’s been one of the prices of isolation paid over the
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