John Carr-Hartley, managing partner and head of litigation and arbitration at LEX Africa member firm, Armstrongs, has been appointed to the Arbitration Foundation of Southern Africa (AFSA) International Arbitration panel.
“It’s a great honour to be invited onto the international panel. You can’t apply. You are invited to submit an application, which in itself is an honour,” he says. AFSA has a local panel of arbitrators for in-country arbitrations, and it has a panel for Southern African Development Community (SADC) countries, says Carr-Hartley. “I’ve been on that panel for quite a few years now. But the international panel only has selected and invited members. It’s a small panel and it deals only with international arbitrations.”
“As a result of being a member of the international panel, I will, although based in Africa, be doing international arbitrations with a number of highly experienced arbitrators. There is increasing recognition of African arbitration practitioners.” He says one of the parties will generally be from Africa and the other will be from outside Africa. “Having Africans on the panel will help give African parties greater confidence to approach the AFSA international panel.”
“What usually occurs is that each party selects one arbitrator and then the two arbitrators selected by the parties appoint a chairperson. Or they can approach AFSA directly and ask them to appoint an arbitrator” says Carr Hartley.
Arbitration is a dispute resolution mechanism where the parties agree to have their disputes resolved by arbitration, and the parties will generally have the flexibility to choose the applicable law and the forum in which the arbitration is going to take place. “For example, if my client is in Botswana and the opposing party is in Egypt, they can agree to hold the arbitration in Egypt or in Botswana or South Africa or anywhere else” he says.
Because arbitrations are by agreement, the parties set the timelines themselves. “So it’s significantly quicker than going through a court process, because an arbitrator is generally more available than sitting in line waiting for your turn in court, as it were,” says Carr-Hartley. The timelines for the exchange of submissions – the statement of claim, the statement of defence and any counterclaim and a reply are agreed by the parties in consultation with the arbitrator.
“So everybody knows well in advance the timelines and when they need to get their submissions done. You also agree on issues pertaining to witnesses, discovery of documents, etc., and you set a date for the hearing well in advance. So it’s a significantly faster process,” says Carr-Hartley.
On the question of how the timelines differ between arbitration and court litigation, Carr-Hartley says, “On average, from the time of issuing the summons to getting a court date, you are probably looking at 18 months to two years, whereas I am involved in an arbitration at the moment where the first preliminary meeting was held in August and we are arbitrating in November.”
Arbitration is intended to be a speedy resolution of disputes and may be conducted while the involved project or contract is still going on, says Carr-Hartley. “That is one reason why arbitration is becoming more and more prolific in Africa, because the parties then have certainty on their rights and obligations going forward”.
As to whether there has to be some contractual agreement to refer a matter to arbitration he says, “In Botswana you require a written agreement to arbitrate. But even if the contract does not provide that disputes will be resolved by arbitration, the parties can do what is called a supplemental agreement. That is a submission to arbitration, where the parties conclude a short agreement that their dispute will be resolved by arbitration.”
He says most of the time, the parties agree in advance that any disputes will go to arbitration. But if the agreement is silent on the dispute resolution process, it is not unheard of that the parties will subsequently agree to refer a dispute to arbitration.
Arbitration is generally more costly than litigation because the parties pay for the arbitrators, but the benefit is both in terms of time and having experts resolve the dispute as opposed to a judge who may not be versed in that particular field of law or type of dispute, says Carr-Hartley.
On arbitration trends in Africa, he says that parties from Botswana and South Africa are increasingly moving towards arbitration to resolve disputes, and other countries like Kenya and Zimbabwe are becoming more active. “This is probably due to the reality of having disputes resolved in the shortest possible time, and because of the certainty it brings, in terms of arbitrations being final and binding, and the decisions of the arbitrator are generally not subject to appeal.”
AFSA initially created the SADC panel and more recently the international panel, because of the increase in the number of parties that are referring their disputes to arbitration and the need to have experienced regional and international arbitrators, says Carr-Hartley.
