Dispute resolution practices vary in many respects from one African country to another, although some significant similarities are apparent. The latter includes a predominance of preference for litigation in handling disputes, for various reasons, although arbitration is gaining increasing acceptance, while mediation is lagging behind.
This was highlighted in the responses LEX Africa received from over half of its member firms across 15 countries from as far afield as North, South, East and West Africa when invited to comment on this topic.
Court litigation is more popular in local commercial disputes in Tunisia, especially when the parties are small to medium size enterprises and when there is no arbitration convention concluded between the parties, says Amina Larbi, partner at MEDLAR Lawyers & Legal Advisors in Tunis.
“The Ministry of Justice in Tunisia created commercial court departments that specialise in commercial dispute resolution, including mediation.”
She says, “parties can also request that the dispute be decided in accordance with the rules of equity. In such case, the decision cannot be appealed before the court of appeal or court of cassation.”
In M&A related contracts or more generally sophisticated transactions involving confidential commercial information of the parties involved, the latter would tend to adopt arbitration mechanisms to avoid bringing their cases before courts.
If the state is part of an international commercial contract, they would be required to include provisions that would submit any disputes to local courts, if not to local arbitration, and avoid inclusion of clauses that lead to arbitration before international institutions, says Larbi.
She says the most regular form of intervention by courts in Tunisia in the arbitral process is the one occurring during the enforcement of the arbitral award when necessary.
In the case of arbitral awards rendered in international arbitration and foreign arbitration awards, the court of appeal of Tunis will be involved in the enforcement process in order to acknowledge the award subject to reciprocity rules.
Mediation in commercial disputes is not popular in Tunisia, says Larbi. However, there are few centres in Tunisia that specialise in mediation and there are attempts to attract parties to submit their disputes to mediation and, mostly, arbitration. An example is the creation of an e-court to rule on arbitration matters in the Tunisian Center for Arbitration and Mediation.
Parties tend to hire experts appointed by the courts and submit written reports on their findings during trials to clarify technical matters for the judges and to prove facts, says Larbi.
The judicial route is the most popular for the resolution of commercial disputes in Angola, says Marizeth Francisco at FBL Advogados in Luanda.
This is due to the high costs associated with arbitration, although it is faster, he says. However, arbitration is the route preferred by big companies, especially those in the oil and gas, and banking and finance sectors.
She adds that with those that have the Angolan state as the anchor client, the contracts usually include arbitration clauses.
Mediation is not popular for settling disputes because the mediation procedures have a high rate of non-compliance and execution and therefore require the filing of a subsequent judicial procedure.
Experts and all other witnesses, as a rule, testify personally at the hearing, through oral testimony.
Written declarations correspond to very special cases that must be requested from the Judge with due grounds, and the Judge may refuse if he considers that there is no plausible reason, says Francisco.
In Eswatini, commercial litigation is considered to be quite expensive, so most clients involved in commercial disputes prefer the arbitration process, says Kenneth Motsa partner at Robinson Bertram in Mbabane.
“Parties in commercial litigation prefer to resolve disputes outside of the judicial process and resort to private dispute resolution,” he says.
Generally, the courts must exercise judicial restraint in relation to arbitration proceedings. They usually become involved when either party seeks to enforce the agreement to arbitrate a dispute while the other seeks to litigate it, or one party seeks the recognition or enforcement of an arbitral award, says Motsa.
“Mediation is usually effective in reaching a resolution as our jurisdiction is equipped with specialists with a technique for enhancing negotiation which shifts the focus from the parties’ respective perspectives to settlement itself.”
He adds that most parties want their matters to be addressed privately as opposed to being heard in public.
Parties exchange written formal and expert witness statements in court proceedings. And practitioners find this helpful in preparation and shortening the hearing time.
In Guinea, the judicial procedure is more popular than arbitration, which is costly, and the parties to a contractual dispute often seek the services of a state judge, says Abdourahim Bodeen Diallo.
He says it is in principle forbidden to oppose an abitral award, or to appeal to the Supreme Court against the decision of the arbitral tribunal. However, this principle is tempered by providing for the possibility for the parties to bring an action to set aside the arbitral award.
Under article 1168 of the Code of Economic Activities, the arbitral award “may be opposed by third parties before the court that would have had jurisdiction in the absence of arbitration”.
Article 1169 of the same code provides that the arbitral award may be appealed, unless the parties have waived the right to appeal in the arbitration agreement, says Diallo.
He adds that, “To the best of our knowledge, mediation does not occupy a preponderant place in terms of dispute resolution in the Republic of Guinea.”
In legal proceedings, documents are communicated by each party or, if applicable, by the lawyer constituted, to all the other parties or, if applicable, to their Lawyers, says Diallo. “Thus, a copy of the written submissions is given to the clerk’s office with the justification of their notification or communication.”
In general, it is the relevance or not of the facts that determines the length of the hearing, he says.
A majority of commercial disputes are resolved through court litigation in Ghana. However, businesses are increasingly resorting to arbitration and arbitration clauses are routinely incorporated into commercial contracts, says Nania Owusu-Ankomah, partnerat Bentsi-Enchill, Letsa and Ankomah in Accra.
The Commercial Division of the High Court in Ghana is duty-bound to promote the resolution of commercial disputes out-of-court, says Ankomah.
“The courts thus conduct a pre-trial review conference after pleadings have closed to enquire whether parties are amenable to out-of-court settlement.
The Ghanaian courts are only permitted to intervene in the arbitral process in limited circumstances, as set out in the Alternative Dispute Resolution Act.
Mediation in commercial disputes is not very popular in Ghana. When used, it is usually adopted as a first step by the parties to attempt settlement, says Pappa Kweku Anan Ankomah, associate at the firm.
“Parties to commercial disputes prefer arbitration or court litigation to settle disputes because of the binding nature of the decisions, which can be directly enforced against the losing party,” says Ankomah. Also, litigation and arbitration provide an avenue for parties to obtain interim relief to protect their interests and prevent dissipation of assets while the proceedings are ongoing.
Parties exchange written factual and expert witness statements, which reduces the trial length, and assists practitioners in their preparation ahead of the trial.
“With respect to expert witness statements, the matters to be submitted to the expert are usually agreed between the parties and the court, or set down by the court where they cannot agree,” says Ankomah.
In Senegal, court litigation is more popular than arbitration with commercial disputes, says Mamadou Mbaye, lawyer at Mame Adama GUEYE & Partners. “We have no statistics, but in practice most of commercial disputes cases are referred to State’s Court.”
He says the court procedure is less expensive, litigators are more confident of courts than arbitration and arbitration is not a common or developed practice.
The courts may intervene in the arbitral process in certain cases, an example being, in the event of the referral of the case to arbitration or if the jurisdiction of the arbitration tribunal is challenged by one of the parties.
Without being part of the arbitral process, the State Court may also intervene in the process of enforcement of the arbitration award which was already given recognition “exequatur”.
Mediation in commercial disputes is becoming increasingly popular in Senegal as an alternative mode of dispute resolution, says Mbaye.
Moreover, in the interest of reducing the high number of the cases referred to the State Court and the time taken by the proceedings, a reform that aims at promoting mediation and conciliation has been undertaken by public authorities.
“Mediation eases amicable settlement of disputes as well as the rapid and efficient handling of commercial and economic litigation,” he says.
In court proceedings the parties have to exchange written submissions and evidence, which may include an expert witness either party may have appointed. “Such an expert witness may be then challenged by the other party.”
The court may also appoint an expert on its own initiative to have a better understanding of the issue or upon the demand of one of the litigating parties.
Arbitration is encouraged in commercial disputes in Tanzania. “However, unless an arbitration clause has been expressly provided in the contract or parties have signed an arbitration agreement, court litigation remains more popular than arbitration,” says Jasbir Kaur Mankoo, advocate at FB Attorneys in Dar es Salaam.
He says the courts are reluctant to intervene in the arbitral process unless there is a compelling reason to do so, for instance bias of the arbitrator.
“Arbitration is still considered independent of court process and a means to uphold the will of parties which submitted to it in the first instance.” However, he says, if a party takes any action to initiate proceedings without alerting the court about the arbitration, then the court will proceed with the case and the arbitration clause will be side-lined.
He says mediation is mandatory in Tanzania before a matter goes for full trial. “In terms of how effective it is, we would rank it as average.”
It is mandatory for parties to file witness statements, whether factual or expert in the Commercial Division of the High Court. However, it is not mandatory in other courts for parties to do so unless ordered by the court in question.
In Zambia, the conventional mode of resolving disputes of any nature is predominantly through the court system by way of litigation, says Sydney Chisenga, managing partner at Corpus Legal Practitioners in Lusaka.
Resolving a dispute by arbitration is usually a contractual matter whereby the parties insert an arbitration clause providing that should the parties encounter a dispute, the same should be settled by way of arbitration.
“Additionally, Zambian law also empowers the court on its own motion to refer a matter to arbitration where it deems the same suitable for arbitration.”
When parties insert an arbitration clause in an agreement, the court has no jurisdiction to hear the matter and must refer it to arbitration as provided for in the Arbitration Act.
Mediation is one of the alternative forms of dispute resolution and is governed by the mediation rules. “In terms of popularity in commercial disputes, mediation can be said to rank third after litigation and arbitration.”
Zambian law allows for parties to exchange written factual and expert witness statements. “The net effect is that there is increased efficiency in the trial process in Zambia,” says Chisenga.
Meriem Oumensour, lawyer at I&I Law Firm in Cassablanca says commercial arbitration remains relatively underdeveloped in Morocco.
Due to its relatively high cost and complexity, arbitration will primarily affect large companies and international investors.
Morocco’s new legislation on arbitration and mediation will align its regulatory framework of arbitration with international standards, particularly in the field of international arbitration, says Oumensour.
It aims to reform Moroccan arbitration law and promote the attractiveness of Morocco for foreign investors, he says. “Its ambition is for Morocco to become a regional hub for international arbitration.”
Moroccan law provides for various instances in which the court may intervene in arbitration proceedings. For example, courts may be involved in naming arbitrators in certain situations, deciding to remove an arbitrator whose appointment is challenged, or terminating the duties of an arbitrator who is no longer able to perform his or her functions.
Also, if an arbitration award is not rendered within the fixed deadlines, then either party may request the president of the court to terminate the arbitration proceedings by issuing an order. Court intervention is also required for enforcing arbitration awards.
Oumensour says conventional mediation has not yet fully entered the mores of Moroccan companies, although the benefits and the efficiency of this amicable mode of dispute resolution are numerous. These include time saving, controlled cost, excellent success rates, and maintenance of commercial relations.
He says its underuse is mainly due to mentality and culture. “Amicable resolution is often considered as an admission of weakness. Lawyers sometimes tend to prefer solutions such as arbitration that call upon their technical expertise.”
In line with the French system, a Moroccan judge can ask either party to produce documentation or other evidence the judge deems is necessary to decide the case.
Litigation is the most popular way of handling disputes in Egypt, said Amir Marghany, managing partner at Marghany Advocates in Cairo.
“We’re not seeing a surge yet in the case load, but we’re expecting some due to the heavy recession.
“The most influential element is liquidity. If there’s liquidity, people forgo litigation, but if the market isn’t liquid and people default, it gets crazy.
With the arbitral process, the courts are not commonly involved; however, annullment proceedings before court are quite common.
Mediation in commercial disputes is not popular in reaching a resolution in Egypt “and it’s not highly regarded,” says Marghany.
He says the main form of pleading is the exchange of written submissions, “however, expert witnesses play a very small role as the judiciary has its own court experts corps that it uses.”
In Lesotho, court litigation is favoured over arbitration when it comes to commercial disputes, says James Grundlingh, partner at Webber Newdigate Attorneys in Maseru.
In terms of the Arbitration Act the court may get involved at any time on the application of any party to an arbitration agreement, on good cause shown.
In so doing, it may set aside an arbitration agreement, or order that any particular dispute referred to in the arbitration agreement shall not be referred to arbitration, or order that the arbitration agreement shall cease to have effect with reference to any dispute referred.
On mediation as a means of reaching a solution in commercial disputes, he says, “Although mediation is compulsory in terms of the court rules it is not popular and not effective.”
In court proceedings the parties do exchange written factual and expert witness statements and these are helpful in preparation and shortening the hearing time.
In Côte d’Ivoire, parties have the choice of submitting disputes to court litigation or to arbitration, says Colette Kacoutié, advocat at FDKA Advocats in Abidjan.
Before any action is brought before the commercial court, the legal provisions require a prior attempt at settlement between the parties. “If the settlement attempt fails, the parties may refer the dispute to the Commercial Court,” she says.
With arbitration, the parties may submit their disputes under a contractual clause.
Arbitration may be submitted to the Ivorian Arbitration Court (CACI) or the Common Court of Justice and Arbitration Court (CCJA). In case of international agreement, the parties commonly choose the London Court of International Arbitration (LCIA) or the ICC International Court of Arbitration, says Kacoutié.
The Ivorian courts intervene in the arbitral process for the enforcement of the arbitral decision, or the appeal for cancellation of the arbitral decision.
A foreign judgment can be enforced in Côte d’Ivoire provided that it has been granted exequatur by the Ivorian courts. Once the exequatur has been obtained, the party can proceed with the enforcement.
Mediation is an alternative dispute resolution process provided for under the Law N°2014-389 of 20 June 2014. “The parties may submit the mediation agreement to the court for homologation, in order to grant enforceability to the agreement,” says Kacoutié.
She says, “We observe that mediation is used in the case of particularly high-stakes international agreements.”
In court proceedings, the parties exchange written conclusions setting out the facts and legal arguments and may also attach supporting documents to their written conclusions.
And the parties can ask the judge to appoint an expert who will issue an expert report. This is helpful in the preparation of the hearing but does not shortening it, says Kacoutié.
In commercial disputes, the tendency is still that these are resolved through litigation in the Botswana courts, says John Carr-Hartley, partner at Armstrongs Attorneys, Notories & Conveyancers in Gaborone.
However, he says, there is a growing trend to include a referral to arbitration for the settlement of disputes when commercial agreements are drafted.
Botswana’s Arbitration Act, Chapter 6:01, 1959, came into effect in November 1959 and has not been amended or updated since then.
He says the Botswana Institute of Arbitrators has published a robust and well-prepared set of rules that are used in arbitration proceedings.
These rules are similar to the Rules for the Conduct of Arbitrations published by the Association of Arbitrators of Southern Africa.
Section 6 of the Arbitration Act gives the High Court the power to stay any proceedings commenced in a court where the parties have agreed to refer any dispute to Arbitration, says Carr-Hartley.
The courts assist arbitral proceedings and have various powers to order interim measures, as provided by the Arbitration Act. These powers include ordering security for costs, ordering document discovery, preserving the subject matter of the arbitration and issuing subpoenas.
There are very limited grounds on which an arbitral award can be reviewed and set aside in Botswana, says Carr-Hartley.
Although mediation is a recognized form of dispute resolution in Botswana, it is seldom used. “Mediation largely depends on the will of the parties to reach a compromise and, for that reason, where a true dispute has arisen between the parties there is generally very little appetite for mediation proceedings,” he says.
It is mandatory that parties to litigation exchange summaries of the evidence of witnesses who are intended to be called to give evidence at a trial. This applies equally to both witnesses of fact and experts, he adds.
In Rwanda, court litigation is more popular than arbitration as a recourse to solving commercial disputes, says Denise Isimbi, junior associate at Certa Law in Kigali. “It is estimated that courts handle more than 95% of the total number of cases on commercial disputes.”
She says this is significantly influenced by the fact that the court system to which most people are accustomed is disproportionately older when it comes to resolution of commercial disputes whereas arbitration is a relatively new concept in Rwanda established in 2008.
The Kigali International Arbitration Centre (KIAC) was subsequently established in 2010.
Arbitration is mostly used by big commercial entities dealing with heavy commercial transactions and contracts, says Isimbi. To illustrate this, in the judicial year of 2020-2021 the commercial courts received an estimate of 8,825 litigation cases while arbitration cases were less than 200.
“In Rwanda, arbitration is independent of the courts and once the parties have agreed to an arbitration, they waive their right to invoke court intervention.
“The courts only intervene in the process of enforcement or appeal for the arbitral award to be set aside,” says Isimbi.
She says Rwanda is shifting away from the traditional court system and adopting arbitral dispute resolution to decrease the case backload of courts. “Commercial courts, in turn, require settlement during pre-trial meetings and mediation where the courts appoint certified mediators to facilitate the dispute settlement as a prerequisite to filing a case to court.”
In Rwandan courts parties exchange written factual and expert witness statements through the Integrated Electronic Case Management System (IECMS).
“This is done in such a way that every documentation related to the hearing is submitted before the hearing.” This helps practitioners in preparing claims and counterclaims ahead of the hearing. It also makes it is easier for judges to align the previously communicated factual and expert witness statements with the oral pleadings to deliver judgement as quickly as possible.
Arbitration is fast becoming the most popular means in South Africa of resolving commercial disputes, particularly large complex ones, says Roger Wakefield, director at Werksmans Attorneys. “The commencement of the International Arbitration Act, based on the Uncitral Model Law, has increased the popularity of arbitration in international disputes.”
He says the growing number of arbitrations administered by the international arm of the Arbitration Foundation of Southern Africa (AFSA) bears testimony to the increasing use of arbitration to resolve international disputes.
Following seminal decisions of the Supreme Court of Appeal of South Africa and the Constitutional Court upholding the principle of party autonomy, a court’s power to intervene or interfere with the process is very restricted. “The court’s role is to support and assist the arbitral process rather than to interfere with it.”
Under the International Arbitration Act, if a dispute subject to a valid arbitration agreement is brought to court, the court is enjoined, if a party so requests, to stay the proceedings and refer the dispute to arbitration, says Wakefield.
“The court’s powers are limited generally to aspects such as the appointment of arbitrators, the procedure for challenging an arbitrator, termination of an arbitrator’s appointment if the arbitrator fails to act, or if it finds that it is impossible for the arbitrator to act.”
He says the International Arbitration Act empowers the court to order certain interim measures: to preserve goods which are the subject matter of the dispute, secure the amount in dispute, to issue a temporary interdict, and to prevent the disposal of assets which might render an award ineffectual.
“The court may only order such relief if the arbitral tribunal has not yet been appointed and if the relief is urgent, if the tribunal is not competent to grant the order or if the urgency of the matter makes it impractical to seek the relief from the tribunal.”
Under the Rules of Court, the parties are required to certify before trial that they have discussed and considered mediation to resolve the dispute. However, mediation is not compulsory. Despite efforts by the legal and business community to promote mediation as a means of resolving commercial disputes, it remains relatively unpopular.
“There are a few qualified commercial mediators, mainly from the Bar (advocates profession) and institutions such as AFSA provide facilities for commercial mediation,” says Wakefield.
The rules governing civil court procedure in south Africa make provision for the exchange of expert witness summaries (a summary of the expert’s opinions and the reasons for the opinion), he says. “Although not required by the rules, it is customary for expert witnesses from both sides to meet prior to the trial in order to attempt to agree issues and narrow the disputes between them.
“Witness statements as a rule do aid the preparation for the trial and shorten the length of the hearing, particularly where the statements stand as the evidence in chief of the factual witnesses,” he adds.