The events of the 1st quarter of 2020 have left an indelible message— “normal” has changed. We have a new world to deal with courtesy of the COVID-19 pandemic.

One area that has benefited from this rude shock to our daily routine is the technology that allows us to bridge space and time to connect. So, while everything else seems to be headed south, technologies that promote virtual or remote human interactions have taken a northward leap.

As Chris Herd observed, “remote work has accelerated 10 years in 10 days”[1]. This is a reference to the speed with which businesses have had to implement remote working as a result of the COVID-19 pandemic. Businesses have been forced to shut their brick-and-mortar outlets and resort to remote work in record time.

This article looks at the impact of this shift on dispute resolution proceedings with emphasis on videoconferencing in arbitration. How can we keep dispute resolution on track in a virtual world? What are the best practices for maintaining fairness and due process in virtual proceedings? We will briefly review some of the international texts that can help in the quest to take dispute resolution to the virtual plane.

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[1]     Chris Herd; accessed @https://www.linkedin.com/pulse/remote-work-has-accelerated-10-years-days-chris-herd/ on 14/04/2020.

In Kenya, Arbitration is classified among the mechanisms commonly referred to as Alternative Dispute Resolution (ADR) and involves a neutral third party in the settlement of disputes. The Arbitration Act of Kenya, 1995[1] defines arbitration to mean ―any arbitration administered by a permanent arbitral institution or otherwise.[2] This definition has been termed by some scholars as not being an elaborate one and hence regard has to be had to other sources.[3] Arbitration has been described as a private consensual process where parties in dispute agree to present their grievances to a third party for settlement.[4] However, it has also been argued that Kenya‘s Arbitration Act contemplates both institutional and ad hoc arbitration as seen in the definition. Arbitration in Kenya is governed by various laws which include the Constitution[5], The Arbitration Act 1995[6], the Arbitration Rules, Civil Procedure Act[7] and the Civil Procedure Rules 2010[8] . Article 159(2) (c) of the Constitution provides that in the exercise of judicial authority, the Courts and tribunals must be guided by the principle of, inter alia, promotion of alternative forms of dispute resolution (ADR) including reconciliation, mediation, and arbitration.

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[1] No. 4 of 1995, Laws of Kenya ,Revised Edition 2012 [2010]

[2] Sec. 3, No. 4 of 1995 (2009)

[3] Muigua, K., Emerging Jurisprudence in the Law of Arbitration in Kenya: Challenges and Promises (Available at http://www.kmco.co.ke/index.php/publications/122- emerging-jurisprudence-in-the-law-of-arbitration-in-kenya-challenges-and-promises ); Google Scholar

[4] Farooq Khan, Alternative Dispute Resolution, A paper presented Chartered Institute of Arbitrators-Kenya Branch Advanced Arbitration Course held on 8-9th March 2007, at Nairobi.

[5] The constitution of Kenya (2010)

[6] No. 4 of 1995(As amended in 2009)

[7] Cap 21, Laws of Kenya

[8] Legal Notice No. 151 of 2010, Rules under Section 81, Cap 21

More than ever before, it has become evident that we live in an inter-connected world. As arbitrators, the idea of building an international arbitration practice and experience has become ever more significant. In this edition of LACIAC’s ADR Personality Special, Tsegaye Laurendeau, takes on a journey that demystifies the secrets to breaking into the international sphere, taking us back to the foundational qualities and essence of arbitrators – thus bringing a different dimension to the conversation.

Experienced or new to arbitration, you will enjoy reading Tsegaye perspective on building an international career as he lays bare the ‘tips for success’ in a pragmatic fashion, guarantying each one a good read.

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The Lagos Chamber of Commerce International Arbitration Centre (LACIAC) in collaboration with the Innovation & Technology Lawyers Network presents the 2019 Innovation and Tech Law Summit, themed: “Ensuring an Enabling Environment for Digital Innovation”. The 2019 Innovation and Tech Law Summit will bring together key stakeholders within the ecosystem of technology, fintech, regulation and law.

The Summit will speak to issues such as, how digital disruption can be used to transform the economy, and what the critical role of the different stakeholders are.

Speakers
Chidi Nwaogu (Co-Founder, Publiseer)
Chimezie Chuta (Founder, Blockchain Nigeria User Group)
Funmilayo Iyayi (Managing Director, Lagos Chamber of Commerce International Arbitration Centre)
Adeleke Alex-Adedipe (Partner, Duale, Ovia & Alex-Adedipe)
Israel Aye (Co-Founder, MYLAW.NG)
Olanrewaju Gbenga-Martins (Head, Operations and Partnership, DIYlaw)
Lere Fashola (Founder, De’Lex Centre)
Moses Sule (Managing Director, Oradian Nigeria)
Nsikak John (Head, Enterprise Innovation Hub, The Nigerian Stock Exchange)
Salami Abolore (Founder, Riby Finance)
Oluwaseun Alley (Director, Partnerships and Policies, ORide)
Seun Timi-Koleolu (Managing Partner, Pavestones)

Panel sessions include:
– Transforming Disruption into Opportunities: the Critical role of Regulation.
– The Future of Legal Services Delivery; Navigating the Technology Minefield
– Cash and the Digital Age? Legal Implications of Blockchain, AI and Smart Contracts.

In May 2019, African countries created one of the largest free trade areas in the world after the World Trade organization. As we make history, LACIAC takes a deep dive into the dispute resolution framework of the African Continental Free Trade Area (AfCFTA). We consider pertinent questions including whether sufficient protection is afforded individuals and firms who will operate in Africa’s free trade zone. Then we offer plausible solutions for strengthening the dispute resolution regime under the Agreement taking into consideration the peculiarity (assets and liabilities) of the African region.

We begin at the genesis of the AfCFTA Agreement. In her article, Naomi Tarawazi explores the journey to creating Africa’s largest free trade zone and the effect of the agreement on the continent, especially on dispute resolution.

With increased trade and investment comes disputes. We focus on the rights of non-state beneficiaries of the AfCFTA Agreement. We draw connections and lessons from how African countries approach investor-trade dispute in Talkmore Chidede’s article.   

Based on these lessons, Tolu Olatunji makes a case on how IT can foster a more effective dispute-resolution procedure under the AfCFTA Agreement.  

In closing, we bring you news updates on arbitration from around Africa.

We hope this Edition provides some useful tips on navigating the dispute-resolution labyrinth of the AfCFTA Agreement and that you enjoy reading it. If you have any feedback on the content of this Edition, please reach out to us.

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*Written by Talkmore Chidede

Historically, African countries have signed investment treaties, particularly bilateral investment treaties (BITs) to attract foreign direct investment (FDI), as a developmental strategy.  To date, BITs have been executed between African countries (intra-African BITs), with developed countries (traditional/North-South BITs) or with other developing countries outside the continent (South-South BITs). Virtually all BITs contain investment dispute settlement mechanisms including non-judicial means, domestic remedies, diplomatic protection, and investor-state dispute settlement (ISDS) international arbitration. ISDS emerged as the commonly used form of investment dispute resolution by foreign investors. It allows investors to bring proceedings before international ad hoc tribunals against host governments for treaty breaches. BITs commonly cite arbitral institutions such as the International Centre for Settlement of Investment Disputes (ICSID), the United Nations Commission on International Trade Law (UNCITRAL), the Permanent Court of Arbitration (PCA), the London Court of International Arbitration, and the International Chamber of Commerce, among others.

Most traditional BITs give automatic consent to ISDS arbitration. Some (especially modern) BITs grant consent to arbitration on a case-by-case basis. “Under case-by-case consent approach, national laws offer the possibility of ISDS but require additional act of consent by host state government before an ISDS arbitration can go forward”.

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*Written by Tolu Olatunji

Regional trade agreements often encounter some legal uncertainties due to unpredictability, non-compliance, non-transparency, and lack of remedies in instances of breaches.  Private investors and traders are the most likely to be negatively affected and this sometimes makes investors more pensive and doubtful about the markets if it is not certain that they will enjoy adequate protection of the law.

At the 2012 AU Summit, African leaders adopted a Decision (Assembly/AU/Dec.394  (XVIII))  on  the  Establishment of  a  Continental  Free  Trade  Area  (CFTA)  by  the indicative  date  of  2017  and  endorsed  the  Action  Plan  on  Boosting  Intra-Africa  Trade. Seven areas of cooperation were identified, namely: trade policy, trade facilitation, productive capacity, trade-related infrastructure, trade finance, trade information, and factor market integration. In June 2015, at the twenty-fifth (25th) Summit of the African Union held in South Africa, African leaders agreed to launch negotiations on the creation of the CFTA by 2017 through negotiations on the liberalisation of trade in goods and services.

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*Written by Naomi Tarawali

During the African Union’s 12th Extraordinary Summit in early July, the signatory States of the Agreement Establishing the African Continental Free Trade Area (the “Agreement”), which entered into force on May 30, 2019, launched the Agreement’s operational phase.

The Agreement is pioneering as a truly pan-African agreement tackling barriers to intra‑African trade and creating one of the largest common markets in the world. It has been ratified by more than 25 African Union Member States, and a further 27 States have signed the Agreement and are expected to ratify, with Nigeria and Benin most recently signing the Agreement on July 7, 2019. Only one of the African Union Member States, Eritrea, has not signed up to the Agreement.  Although the impact of the Agreement remains to be seen, projections are promising and many are optimistic that it will have a significant effect on boosting intra-African trade, encouraging investment from within and outside of Africa and enhancing overall the competitiveness of African States’ economies in the continent and in the global market.

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The Lagos Chamber of Commerce International Arbitration Centre (LACIAC) in collaboration with Famsville Solicitors, Olawoyin & Olawoyin and Doyin Rhodes Vivour & Co is organizing a 1-day roundtable discussion on Maritime Business & Disputes. 

The two panel discussion will provide first-hand insight and knowledge on the following topics: 

Session 1: African Continental Free Trade Area – growing export market and the potentials for the maritime industry.

Session 2: Integrating the African Continent for the development of Maritime Trade – eliminating trade barriers and dispute resolution management.

Registration has now closed.

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