DISPUTE RESOLUTION IN AFRICA
CD: In broad terms, how would you describe Africa’s dispute resolution landscape? What trends and developments have you seen in the past 12-18 months?
Abraham: The dispute resolution landscape mirrors that of the continent itself – rich, varied, exciting, dangerous in places, some places often flooded, others arid. It is vital not to regard ‘Africa’ as a homogenous whole for legal purposes, as some do. The legal landscape varies hugely across the continent. To compare what happens in, say, South Africa and Libya is largely meaningless. Recent positive arbitration developments include the Democratic Republic of Congo’s decision to accede to the New York Convention. However, its accession is subject to wrinkles including a special derogation regarding immovable property, including mining rights. As with any country’s accession to the Convention, the real test will come when the enforcement actions start. We have seen a greater variety of dispute work in the last 12-18 months, assisted by new office openings in Casablanca and Johannesburg, with its market-leading disputes team. The extractive industries and construction remain important, but other sectors such as banking are becoming increasingly prominent.
Vurgarellis: Litigation in any jurisdiction is always marked with uncertainty. The position is exacerbated when operating outside of one’s home jurisdiction. When litigating in court outside of one’s jurisdiction one is faced with uncertainty as to not only the process but also the attitude that one can expect from the court hearing the matter. For this reason one sees as a growing trend a move towards mediation or arbitration, which is regulated contractually, particularly when dealing with commercial disputes that flow from international investment.
Jul-Sep 2014 issue
Baker & McKenzie LLP
Hogan Lovells; Linklaters LLP
Weil Gotshal & Manges LLP