FORMER Kenyan High Court judge Edward Torgbor, now practising as a specialist arbitrator, says the parties in 99 percent of all African disputes are represented by lawyers and law firms based in the UK, the US and France.
He warns that the time has come for Africa to wake up to the realisation that it remains a perennial outsider by choice.
Torgbor was speaking at a recent conference in Johannesburg, held under the auspices of the International Chamber of Commerce’s International Court of Arbitration and the Fédération Internationale Des Ingénieurs-Conseils.
Torgbor spoke of prejudice and bias against Africa stemming from the negative image of Africa as a hopeless continent forever afflicted by ignorance, poverty and avarice. He suggested that the negative branding was so potent that the mere mention of Africa called up images of subservience, incompetence and failure, and said any positive development was credited to the controlling involvement of international donors, expatriates and expert advisers.
He concluded that foreign arbitrators and practitioners monopolised, or dominated, arbitrations in their own countries to the virtual exclusion of Africans, and that Africans themselves transferred their disputes abroad and appointed foreigners to resolve them at enormous cost.
Torgbor’s views are very important in the broader African context, but does this necessarily apply to South Africa?
Judge President of the Cape Provincial Division of the High Court, Judge John Hlophe, said in a report nine years ago that arbitration was obstructing judicial transformation in South Africa.
This followed a 2001 Law Commission report warning of a perception “particularly among black lawyers, that some white members of the legal profession see arbitration as a form of ‘privatised litigation’, enabling them and their clients to avoid the courts”.
Notwithstanding Hlophe’s report, there has been strong support for arbitration from the Supreme Court of Appeal and the Constitutional Court.
These courts have confirmed that South Africa would continue to show a high degree of deference to arbitration awards and that there would be minimal judicial intervention when reviewing international commercial awards.
South Africa is well placed to play a leading role as an important regional arbitration centre.
The issues raised by Judge Hlophe nearly a decade ago, and the perceptions referred to by the Law Commission, have faded over the years, particularly in the context of international arbitration.
The country can now look forward to a new International Arbitration Act, which, by adopting the internationally recognised UN Commission on International Trade Law Model Law, will signal a new dawn for arbitration in South Africa.
Des Williams is the chairman of Werksmans Attorneys and the South African member of the International Court of Arbitration of the International Chamber of Commerce.