Effective, affordable dispute resolution is possible – October 2009
Commercial disputes are unavoidable; hence, efficient mechanisms for their resolution are essential. International trade disputes are no different, and the mechanisms now universally used for their resolution are mediation, arbitration and conciliation. These forms of dispute resolution work best when a well-resourced, neutral and credible arbitral body administers the process.
Initially the recognised international arbitral authorities were based in Europe, but in recent years, there has been a considerable growth of such institutions throughout the world. China, Russia, India Singapore and Dubai are but recent examples. All these institutions oil the wheels of international trade and commerce.
The Establishment of Africa ADR
At a widely attended conference convened in Mauritius in 2007, representatives of the legal professions of South Africa and Mauritius and of arbitral institutions from the DRC and Mozambique, South Africa and Mauritius together with the Institute of Directors of Southern Africa, resolved to establish Africa ADR. Since that time, the Arbitration Foundation of Southern Africa (AFSA) has led the initiative to establish Africa ADR in close consultation with and cooperation with the Mauritius Chamber of Commerce and Industry.
Discussions are currently being finalised for countries including Lesotho, Tanzania, Botswana, Zimbabwe, Malawi, Swaziland, Namibia and Zambia to become active participants in this initiative.
The Role of Africa ADR
To refer African disputes to European arbitral authorities for resolution is prohibitively expensive and unsatisfactory. Ad hoc arbitral processes are often ineffectual and founder for lack of supervision.
Africa ADR is a non-profit wholly independent arbitral institution that is to operate throughout Africa and the Indian Ocean Islands. It is a corporate partnership between participating African arbitral institutions, business and the legal profession. It will provide comprehensive and complete administrative services in the resolution of international and regional disputes whether by way of arbitration, mediation or conciliation.
Africa ADR is to be the arbitral link between those who invest in Africa, and those who trade in Africa; between business communities of Africa and abroad and between Africa and the international community. It will foster the culture of alternative dispute resolution and serve as a training centre for and repository of essential skills and specialised knowledge.
International Trade Agreements
The first essential step for all parties to an international trade agreement is the inclusion of the relevant clause, appointing Africa ADR to administer a dispute that may arise. Once a dispute arises, the party wishing to refer the matter to arbitration, will apply to Africa ADR, requesting the authority to administer the dispute.
Administering the Dispute
The task of administration that the arbitral authority undertakes involves comprehensive case management by professional staff in accordance with specialised rules. It also requires the arbitral authority to provide the oversight and the ancillary services necessary to ensure a fair and efficient outcome concerning each dispute submitted to its jurisdiction in accordance with international standards. The detailed process of administration can be found on the website How Africa ADR works.
Benefits Flowing from the Establishment of Africa ADR
To the business and investment community the establishment of Africa ADR provides a credible arbitral system offering a proper mechanism for the resolution of international and regional disputes. The system will be cost efficient; the venues close and convenient; the process credible and efficient. The existence of such a system, readily available and convenient to use will do much to encourage cross-border trade and investment.
The project holds out the hope of unifying the continent’s legal communities. Once the bridge between the communities is in place, there will be every incentive to extend cooperation into related fields of endeavour with the ultimate goal of producing an African jurisprudence, which will be internationally recognised
Governments will have the option to use the system themselves as disputants allowing an African resolution of African disputes.
General Support and Endorsement
There is a broad consensus amongst a range of relevant institutions that Africa ADR will serve an important need. It is a project endorsed and supported by:
- Business Unity South Africa (BUSA);
- NEPAD Business Foundation (NBF);
- SADC Employers Group;
- The Institute of Directors of Southern Africa (IOD);
- The Arbitration Foundation of Southern Africa (AFSA);
- The Mauritian Chamber of Commerce and Industry (MCCI);
- Centro de Arbitragem Conciliaçăo e Mediaçăo (CACM);
- Centre d’Arbitrage Du Congo (CDA);
- Leading attorney firms with African and overseas clientele including, in South Africa, Bowman Gilfillan Inc; DLA Cliffe Dekker Hofmeyr Inc; Deneys Reitz; Edward Nathan Sonnenbergs Inc; Glyn & Marais Inc; Rooth Wessels Motla Conradie Inc; Routledge-Modise in association with Eversheds; Tugendhaft Wapnick Banchetti & Partners; Webber Wentzel; Werksmans Inc.;
- The Lex Africa Network;
- General Council of the Bar of SA; Cape Bar; Johannesburg Bar; Pretoria Bar;
- Leading accounting firms including Deloitte & Touche; Ernst & Young; KPMG; PriceWaterhouseCoopers Inc’
Ready to Commence
Africa ADR is ready to commence its business operations. It has drawn up and confirmed its rules and procedures for arbitrations, mediations and conciliations.
It is in the process of establishing local organising committees (LOC’s) in all the countries in which Africa ADR will operate.
The Africa ADR website provides detailed information about:
- Clauses to insert in commercial contracts
- How Africa ADR works
- Rules for arbitration, mediation and conciliation
- The Secretariat
Visit the website at: www.africaadr.com
Telephone: + 27 (0) 82 837 5029
Fax: + 27 (0) 11 320 0533