The Rise of the African Arbitrator: Fact or Fiction?
In all global conferences and gatherings relating to investment and international commercial arbitration in Africa, there are concerns raised about the low levels of arbitrator appointments from Africa, even in cases relating to African jurisdictions.
Numerous questions arise. Why do African states appoint non-African as arbitrators? Is there any chance of investors, which are largely non- African, appointing African arbitrators? What about appointment of African Arbitrators in non-African disputes?
To explore these issues, I have analysed all arbitrator appointments in ICSID arbitration tribunals and ad hoc committees in which East African Community (EAC) states are named as parties as at 13th August 2019.
ICSID Appointment Procedure
Article 37 (2)(b) of the ICSID Convention gives each party the right to appoint an arbitrator without seeking the concurrence of the other party. The parties are also free to appoint anyone as tribunal president. Party appointments can be from outside the ICSID panel of arbitrators (“ICSID Panel”) provided the appointees “shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance and who may be relied upon to exercise independent judgment”.
Each ICSID contracting state has the right to nominate 4 persons to the ICSID Panel. It is only when the parties do not make appointments in time that the ICSID Chairman of Administrative Council (ICSID Chair) appoints the president or any co-arbitrator. The ICSID Chair should appoint arbitrators from the ICSID Panel. Arbitrators cannot be of the same nationality with any of the parties. The ICSID Chair also appoints, under Article 52(3), all the members of the three 3-person ad hoc committees, which hear award interpretation, revision and annulment proceedings.
East Africa cases at ICSID and Appointed Arbitrators
19 cases had been filed at ICSID against the EAC states. Tanzania has had a total of 8 cases – 3 concluded, 5 pending. Burundi has had 4 cases – all concluded. Kenya has had 3 cases – 1 currently undergoing annulment proceedings. Uganda has had 3 cases – 1 pending. South Sudan has had 1 case. Rwanda has had 3 cases – 2 discontinued, 1 pending.
46 arbitrators were appointed in the 19 EAC cases. French and British arbitrators have had an equal number of appointments making a total of 16 or about 35% of all the appointments. 17 appointments have been from US, Canadian, Australian and New Zealand. This makes western nationality appointments total 33 out of 46 or about 72% of all the appointments. 6 arbitrators have had multiple appointments, 3 are French, 1 British, and 1 US national. The only non-western arbitrator who has had repeat appointments is Bangladeshi.
Of the 46 arbitrators appointed, 6 are Africans. These are: 2 Nigerians; 1 Algerian; 1 Egyptian; 1 Ugandan; and 1 South African. The 2 Nigerian arbitrators are women while the other African arbitrators are men. The ICSID Chair has appointed 3 (including 2 women) out of the 6 Africans or 50% of all the African appointees. With regard to party appointments:
- Burundi – The 4 ICSID cases against Burundi were conducted in the French language. In all the cases, the claimants appointed French nationals, 2 of whom were also Iranians. Burundi appointed French nationals in 2 out of 3 appointments, and 1 Algerian.
- Kenya – In the 3 Kenyan cases there have been appointed a total of: 2 Australians; 1 French; and 1 British/Ugandan.
- Rwanda – A total of 6 Arbitrators have been appointed. None are African. There have been 1 British, 1 British/German, 1 American, 1 Australian/German, 1 Swiss and 1 French.
- South Sudan – in the 1 case lodged against South Sudan, there were 3 arbitrators: 2 from New Zealand and 1 from Australia.
- Tanzania – The 2 latest case against Tanzania were lodged on 16th April 2019 and 31st May 2019 respectively, and arbitrators have not been appointed. In the 6 cases where arbitrators have been appointed, there have been a total of 18 arbitrators: 3 British, 1 British/Nigerian, 3 US, 1 Swiss/US, 1 Bulgarian, 1 Singaporean, 1 South African, 1 Bangladeshi, 1 Canada/New Zealand, 3 Australian and 1 French.
- Uganda – In the 4 cases against Uganda, the claimants appointed British and US/Swiss nationals. In one, the claimant’s appointee and the president (appointed by parties) were US nationals. Uganda appointed 1 arbitrator (a Bangladeshi) in 2 cases. The presidents were Finnish (appointed by the ICSID Chair) and US.
The above empirical evidence demonstrates that African arbitrator appointments are indeed rare, even by State parties. Parties, advisors of parties and the ICSID Chair should purpose to appoint more Africans to panels. African arbitrators on the other hand should showcase their expertise. Newton’s 1st Law of Motion states that an object will remain at rest or in uniform motion in a straight line unless acted upon by an external force. Put differently, status quo continues until it is purposefully disrupted.