By Waziri Isa Adam (Group Editor-in-chief)
A Hubert Humphrey Fellow, USA, and immediate past Chief Executive Officer and Director General of Nigerian Institute of Advanced Legal Studies, Professor Muhammed Tawfiq Ladan, pointed out that regional economic integration in Africa is undoubtedly a catalyst for growth in Alternative Dispute Resolution (ADR) generally, and arbitration in particular.
He offered the insight at Eko Hotels and Suites, Victoria Island, Lagos, Nigeria, yesterday, on a theme “Transformation and Intervention: The Evolving Trends in Arbitration and ADR Practice in Africa”.
Professor Ladan who spoke on a topic “The Future of Investor-State Dispute Settlement in Africa: The Role of Regional Arbitration Centres” said regional economic integration in Africa is undoubtedly a catalyst for growth in ADR generally, and arbitration in particular.
Over the years, Africa has progressively sought to enhance access to justice through each state’s national courts, regional courts, and the African Union (AU).
According to Professor Ladan, “In furtherance of shared objectives, African states have united and formed regional blocs based on their geographical and strategic locations.”
Each of these regional blocs, through their respective founding treaties, established a judicial arm mandated with adjudication of disputes between member states or any dispute referred to the court by a resident of a member state.
The existing African and regional courts include the Economic Community of West African States (ECOWAS) Community Court of Justice. This court has jurisdiction to adjudicate disputes on questions of economic cooperation between member states.
The Treaty for the Establishment of the East African Community (EAC) established the East African Court of Justice (EACJ) with jurisdiction to determine disputes flowing from the treaty including trade disputes and human rights violations.
Africa is endowed with abundant extractive resources ready for exploitation as development projects, where development / extractive resource-based project go, disputes follow. Similarly, as regional economic integration is taking shape within the eight RECs (SADC, ECOWAS, EAC, AMU, COMESA, IGAD, CENSAD and ECCASS), and with the Common market, Cross-border transaction will undoubtedly spike.
Consequently, we’ve seen an explosion of both investor-state and commercial arbitrations, as well as reform of national arbitration laws, emanating from Africa in recent years, consistent with African States international, regional and continental treaty obligations.
The AfCFTA Protocol on Investment provides for both ISDS and State V. State DSM as opposed to the AfCFTA Protocol on DSM that is Member States driven.
The AfCFTA Agreement and its Protocol on Investment have the potential effect, except for foreign Direct Investments into a particular African Host State, to terminate / replace INTRA-AFRICAN Bilateral Investment Treaties (BITS), 5 Years from entry into force.
African regional arbitration centers have a crucial role to play in addressing the challenges and concerns relating to ISDS. These centers must ensure that more experienced African arbitrators are appointed to cases.
The Cairo Regional Centre for International Commercial Arbitration, the Lagos Court of Arbitration, and the Nairobi Centre for International Arbitration are some of the established African arbitral institutions.
Professor Ladan emphasized that African regional arbitration centers must play a key role in shaping the future of arbitration in Africa.