ADR in Africa

Business Conflict Blog by Peter Phillips

The final paper from a student in the International Commercial Dispute Resolution course at New York Law School discusses the present state of commercial mediation, conciliation and arbitration in selected jurisdictions in Africa. The author also identifies certain political and commercial attributes that are missing in the region and that, she argues, will be necessary to develop in order for interest-based dispute resolution to take hold and provide the business efficacies of which it is capable.

The topic is ADR in Africa, and the author is Jasmine Dickerson.

Overview of Commercial Alternative Dispute Resolution in Africa

This paper presents an overview of the arbitration mechanisms for resolving commercial disputes on the continent of Africa. It will take a look at the various types of ADR on the continent, the historical context for commercial ADR in Africa, as well as examining several country specific and regional mechanisms for resolving commercial disputes currently in existence. It will conclude that structures currently exist, however improvement, time, and legitimacy in the region is necessary for ADR to truly be effective in the region.

By Jasmine C. Dickerson

Introduction

Alternative Dispute Resolution (”ADR”) consists of a range of processes used as an alternative means of resolving disputes between two or more parties. It has been highlighted as a more efficient way of doing business and resolving conflict. Since disputes are an inevitable product of some business transactions, resolutions of such disputes can become the difference between a continuing productive commercial relationship and termination of that relationship. ADR has been useful in resolving commercial disputes by providing speedier enforceable decisions through arbitration, mediation, and conciliation mechanisms. Due to increasing domestic and foreign investment in Africa, there is an increased pressure for sufficient, fair, and organized ADR organizations within the continent. Foreign investors tend to have warranted suspicion about African national judicial systems, which are often beset by corruption, long and costly procedures, and lack of efficient enforcement of the law. [1] Companies, governments, private and non private actors are looking for destinations within the continent that provide procedures for resolving commercial disputes. “When operating a business in Africa or in connection with an African State, there are a wide range of laws and practices that likely apply which can impact business activity. Businesses entering into contracts with States or other companies in Africa must typically consider the law applicable to the contractual relationship and the law applicable to the arbitration proceedings foreseen in the contract in question before a dispute arises.” [2] This paper presents an overview of the arbitration mechanisms for resolving commercial disputes on the continent of Africa. It will take a look at the various types of ADR on the continent, the historical context for commercial ADR in Africa, as well as examine several country specific and regional mechanisms for resolving commercial disputes currently in existence. It will conclude that structures currently exist, however improvement, time, and legitimacy in the region is necessary for ADR to truly be effective in the region.

Different Types of ADR available

There are several different methods of ADR in Africa countries. The most prevalent are conciliation and mediation. Often used in labor disputes, conciliation and mediation both look to maintain existing business relationship and to rekindle a lost balance of power between the parties. Arbitration is used in disputes as a last ditch effort before litigation becomes a must. Below is an in-depth description of the various types of ADR available.

Negotiation is a voluntary and informal process in which the parties seek out the best options for each other. The result is usually a mutually acceptable agreement. In this private process there is usually no limit to the argument, evidence, and interests that may be brought to the bargaining table. This allows commercial disputes to be resolved without a third party, thus providing for a more confidential agreement.

Mediation is usually sought out when parties to a dispute are ready to discuss the issues openly and honestly. It is an ADR method where a neutral and impartial third party mediator facilitates dialogue in a structured multi stage process to help parties reach a conclusive and mutually satisfactory agreement. A mediator cannot impose a solution on the parties as a conciliator and arbitrator can. A mediator works together with the parties, its priority is to facilitate the parties’ own discussion and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair, durable, and workable. The parties play an active role in mediation, identifying interests, suggesting possible solutions, and making decisions concerning proposals made by other parties. “A successful mediation affords the parties an opportunity to generate a creative solution to their dispute in a manner that focuses on the future and not the past. Its major benefits include that they control the process, choose their mediator and avoid trial.”[3] Mediation is usually looked at as a peaceful dispute resolution tool that is often used complementary to the existing court system and the arbitration.

Conciliation is often used when the parties of a dispute have the wiggle room to cure the breach or make up and salvage the relationship. A third party conciliator is appointed as an impartial person that assists the parties through the negotiation and then drafts a solution based on what they think to be a just compromise. Unlike arbitration the whole process is much less adversarial, in that the conciliator seeks to identify all the rights that have been violated or issues that have been breached and searches to find the optimal solution to cure the breach.. “In effect, the conciliator may be regarded as designer of the solution; this may be contrasted with meditation where the parties are guided to design their own solution.” [4] The conciliator plays a direct role in the resolution of the dispute and figures out the best solution for the parties and this becomes the drafted settlement.

Arbitration views the dispute as a legal analysis and seeks a solution based on entitlement and rights. It often “may ignore the interests and needs of an individual party and critically in international disputes, not embrace the cultural influences on the problem in hand.”[5] Like litigation, it is an adjudicative process whereby a single or panel of arbitrators imposes a settlement on the parties. Unlike litigation, it usually subject to confidentiality agreements between the arbitrator, the parties and the seat of the arbitration.

When looking at ADR, one must remember that dispute resolution was conceived as a mechanism outside the courts of law established by the State. Arbitration has fallen within the wide range of ADR methods that sometimes includes hybrid mechanisms like Con-Arb and Med-Arb, however one must not forget that in arbitration there will be a final and binding award and in the other forms there is no finality except with the consent of the parties. This is important when looking at how several African countries have decided to enact laws subject to arbitration and conciliation ADR methods if a dispute occurs.

Historical Context of Dispute Resolution on the Continent

Within the continent, there is an increase of ADR organizations both in specific countries as well as regional centers popping up which allows for ADR to take place where the current judicial system lacks the time and fairness. In West Africa alone, there are over 16 regional and local ADR centers serving investors and over 65 law firms offering ADR services. [6]ADR is not new to the area but has been around before colonial times however in a more local way. In Africa, they have “the luxury of learning from experiences in other jurisdictions. [They] do not have to go through all the growth pains of evolving an ADR system from scratch but can take what is relevant, adapt what is useful, build on what is vital and ignore what is inapplicable.” [7]

Alternative Dispute resolution is an age long cultural phenomenon in most African Countries. Reconciliation is the traditional means of solving disputes arising from a breach in a relationship between two or more parties. In fact, traditionally African societies have resolved disputes through the use of a negotiated settlement. Unfortunately, as these countries became colonized, the government controlled dispute resolution mechanisms replaced the old customary law systems. Some of the traditional dispute resolution mechanisms survived only as informal systems and as lower courts in the judicial hierarchy. [8] In the traditional setting, (villages, hamlets, settlements, and towns), dispute resolution is almost as old as the traditions and customs of the people. Customary law is generally known to be the accepted norm in a community; it is unwritten and one of its most commendable characteristics is its flexibility.

Resolution and reconciliation was and in some places still is major way of solving disputes under the indigenous system of governance. In Kenya, 51% of Kenyans prefer to report problems to community leaders rather than the police and 60% don’t ever use the courts.[9] For example, the role of arbitrator or conciliator was taken up by the elders or the chief and all resolutions were meant to maintain social cohesion in the village or settlement. “Any person who is concerned that a dispute between the parties threatened the peace of the community could initiate the process. In the process, parties have the opportunity to state their case and their expectation but the final decision is that of the elders. Customary arbitration is not private but is organized to socialize the whole society, therefore the community is present. Parties could arise from the whole process and maintain their relationship and where one party got an award the whole society was witness and saw to it that it was enforced. Social exclusion or ostracism was a potent sanction for any erring party therefore enforcement of an award was not a problem.” [10] This way of solving disputes showcases the ability for African countries to take hold of a traditional way of solving disputes and using it in a more directed and commercialized nature. Given that the term commercial “has a wide interpretation and includes ‘matters arising from all relationships of a commercial nature, whether contractual or not-including the simple supple or exchange of goods and services’”, one can see how even village relationships can benefit from ADR and can be incorporated on a small scale level in the continent. [11] In fact is already being seen in Uganda where the 1995 Constitution has incorporated traditional customary law into the trial process, by requiring that parties be subject to reconciliation in all matters handled by the judiciary involving commercial disputes, and the 2000 Arbitration and Conciliation Act allows for new judicial powers that can allow judges to submit cases to mediation for amicable resolution. [12]

Each of the ADR processes addressed herein, arbitration, mediation, negotiation, and conciliation, provides important benefits to parties and are seen as being complementary to the whole judicial process. However, conciliation represents the closes embodiment of traditional customary law in African societies. An example of this is seen in Benin, which has throughout the country specialized conciliation tribunals that are considered competent to hear almost all matters of disputes related to civil law. “Their records are transmitted to the court of first instance which either confirms the successful conciliation or assumes jurisdiction if the conciliation fails.” [13] If affirmed the conciliation record acquires the force of a final judgment and can only be contested to questions of law through an appeal to a higher Court. In this way Benin has mixed conciliation, arbitration and the judicial process in an integrative way that is quite exceptional. It also showcases the potential of the continent if allowed to evolve naturally.

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F. Peter Phillips

F. Peter Phillips is a commercial arbitrator and mediator with substantial experience providing consultation on the management of business disputes to companies around the globe. A cum laude graduate of Dartmouth College and a magna cum laude graduate of New York Law School, Mr. Phillips served for nearly ten years… MORE >