ICCA Mauritius 2016
International Arbitration and the Rule of Law: Contribution and Conformity
XXIIIrd ICCA Congress
8-11 May 2016
The 2016 Congress in Mauritius focused on the theme: “International Arbitration and the Rule of Law: Contribution and Conformity”. Papers presented at the 2016 ICCA Congress were published in the ICCA Congress Series No. 19, which is available on www.KluwerArbitration.com.
On behalf of the ICCA Governing Board, I heartily welcome you to the 23rd ICCA Congress. Thank you for taking this opportunity to participate in discussions that have the potential to shape developments in our field over years to come.
ICCA seeks to promote the knowledge and use of arbitration and other forms of international dispute resolution. Our Congresses are central to that mission. When inviting us to Mauritius back in 2014, Host Committee Chair Salim Moollan QC (pictured here with UN Secretary General Ban Ki-moon, middle, and myself, left) said that it was “a bold move” by ICCA – and “one which says much about ICCA’s current role and ambitions”. By choosing Mauritius, ICCA recognises the considerable and continuing efforts by this country to establish itself as a neutral and state-of-the art arbitration venue for a region of the world that could derive great benefit from more effective dispute resolution processes. Throughout our time during the Congress - and at the Spotlight on Africa session on Wednesday in particular - we can expand our perspectives on arbitration in Africa and gain invaluable insights from leading African and international practitioners.
With the theme of “International Arbitration and the Rule of Law: Contribution and Conformity”, this Congress provides us with the opportunity to debate and discuss how the international arbitration system affects the rule of law, human rights, and economic development. We will put international arbitration under the microscope in terms of its conformity with the rule of law and assess how it measures up to the requisite standards. We will hear from scholars, practitioners, economists, political scientists and jurists. In addition, intensive panels will cover topical issues and examine the key issues that affect our field today.
We have a lot to absorb and much to gain.
On Monday you have the opportunity to meet the authors and editors who bring us ICCA’s invaluable publications, which include the Yearbook Commercial Arbitration, the International Handbook on Commercial Arbitration, the ICCA Congress Series, the ICCA Reports Series, and ICCA’s Guide to the Interpretation of the 1958 New York Convention - now available on ICCA’s website in Arabic, Burmese, Chinese, English, Farsi, French, Georgian, Greek, Indonesian, Italian, Polish, Portuguese, Russian, Spanish, Turkish and Vietnamese, with Croatian, German, Hebrew, Serbian and Ukrainian translations underway.
During the Congress, ICCA’s varied project groups will gather to further their deliberations on key issues confronting practitioners today (outlined in the recently published 2015 President’s report available on the ICCA website at http://www.arbitration-icca.org/, which I encourage all to read). Young ICCA will also be active at this Congress, building on a record year in 2015, in which it held events and workshops in over 20 countries in Africa, the Americas, Asia, Europe and the Middle East. This dynamic and energetic group are working towards an equally intense programme in 2016, with a focus on diverse jurisdictions and audiences, including Uganda, Tanzania, Tehran and Angola.
Are you an ICCA member? Be sure to drop by the ICCA Lounge and find out more about what joining ICCA can do for you. ICCA membership puts you at the centre of the international dispute resolution community. ICCA Membership is the only way to participate in ICCA projects and in that way contribute to fairer and more effective international dispute resolution and the increased social and economic development that is the ultimate goal.
We look forward to a productive and stimulating exchange of views in this spectacular location.
With best wishes,
- Mr Salim Moollan QC (Chair)
- Mr N. Armoogum
- Mr Duncan Bagshaw
- Mr V. Dawon
- H.E. Mrs Ambassador U. Dwarka-Cannabady
- Ms Dipna Gunnoo
- Mr Bissoon Heerowa
- Mr Yvan C. Jean Louis
- Ms Nirmala Jeetah
- Ms Ndanga Kamau
- Mr Somduth Nemchand
- Mr Ken Poonoosamy
- Mrs B. Rajahbalee Cader
- Mrs C. Ramah
- Mr Uttum Rughoobur
- Mrs Claire de Tassigny Schuetze
- Ms Andrea Menaker (Chair)
- Dr Mohamed Abdel Raouf
- Ms Olufunke Adekoya SAN
- Ms. Yas Banifatemi
- Mr Doug Jones AO
- Dr Gaston Kenfack Douajni
- Mr Salim Moolan QC
- Mr John Ohaga
ICCA 2016 Congress Roadshows
In preparation for the 2016 ICCA Congress in Mauritius, ICCA and the Mauritius Host Committee hosted a series of short symposia in five major African cities during 2015. African specialists, judges, government officials and institutes shared their expertise on arbitral practice in their regions, and their thoughts on the relationship between arbitration and the rule of law.
Read reports and view photos from these ICCA 2016 Congress Roadshows below.
“The ICCA Congress in Mauritius will be a milestone in the history of arbitration in Africa”. With these words the Solicitor-General of Lagos State Mrs. Funlola Odunlami affirmed the Nigerian government’s support for the ICCA Congress to be held in Mauritius in May 2016. Reflecting on Nigeria’s modern arbitration legislation and the growth of the Lagos Court of Arbitration (LCA) during the fifth and final pre-Congress Roadshow in Africa hosted by the Mauritian 2016 Host Committee and ICCA, she appealed to ICCA to engage with African dispute resolution beyond the Congress, going forward. This message was affirmed by the representative of the government of Mauritius, Mr. Yousouf Mohamed Ramjanally, whose Pan-African message about the Mauritian arbitration project’s broader role in supporting the growth of international arbitration on the continent struck a cord with the 100 assembled dispute resolution specialists.
Other speakers tackled rule of law issues. President of the Lagos Court of Arbitration, Mr. Supo Shasore SAN, noted that Nigeria represents the largest single litigation market on the continent, and that in this context arbitration plays an important role in providing access to justice, especially where courts are contested. Taking the perspective of the user, Mr. Babatunde Fagbohunle SAN (Chair of the Board of the new Lagos Chamber of Commerce dispute resolution initiative LACIAC) highlighted the certainty provided by instruments such as the New York Convention, applauding the work of organisations like UNCITRAL and the IBA in developing guidelines and frameworks within which arbitration can flourish. The focus then turned to the recent developments in arbitration in Africa, with a lively panel discussion featuring contributions from the PCA’s Special Representative in Mauritius, Farouk El-Hosseny, LCIA-MIAC’s Registrar Ndanga Kamau, the LCA’s General Counsel Tolu Obamurah and Duncan Bagshaw of Stephenson Harwood.
The full programme concluded with an insight into ICCA and its mission by ICCA Executive Director Lise Bosman and some practical information about the Congress by Duncan Bagshaw and Ndanga Kamau. New ICCA Governing Board member (and LCA Board member) Ms. Olufunke Adekoya SAN closed the day by announcing the LCA’s plans to distribute ICCA’s New York Convention Judges’ Guide to Lagos State and Federal judges in the coming weeks, and invited participants to “come to Mauritius to follow the conclusion of the debates!” Guests then enjoyed the LCA’s warm hospitality at a closing reception that also gave guests the opportunity to admire the new [ADR…] premises for dispute resolution – home to multiple Lagos-based dispute resolution institutions – which include 11 full hearing suites and extensive conferencing facilities.
The penultimate pre-Congress Roadshow was held in Douala, Cameroon, at the landmark Hotel Sawa. As Douala is a regional hub for trade and industry, the Roadshow managed to attract over 100 delegates not only from Cameroon, but also from Western and Central Africa. The Roadshow remained faithful to Cameroon’s bilingual tradition, and so speakers and participants engaged in both French and English. Holding the event would not have been possible without the crucial support of l’Association pour la Promotion de l'Arbitrage en Afrique (APAA), headed by prominent Cameroonian international arbitrator, Dr. Gaston Kenfack Douajni. The APAA held an international colloquium under the auspices of the OHADA the following day on “L'Etat africain dans l'arbitrage international”.
The Roadshow started with a welcome address by Dr. Douajni and Ndanga Kamau (Registrar, LCIA-MIAC), who thanked the speakers as well as the attendees for their participation on behalf of the Mauritius Host Committee, of which she is an executive member. She also acted as the representative of the Mauritian Government and addressed the attendees in that capacity. The Roadshow was officially inaugurated by the Cameroonian Attorney General, Mr. Jean Claude Awala Wodougue (Magistrat Procureur Général près de la cour d’Appel du Littoral), who addressed the importance of the rule of law in African governance. A sunny cocktail reception was held thereafter. The cocktail saw a strong presence from local and regional media. In a first session moderated by Ndanga Kamau, Dr. Douajni gave an overview of the rule of law in West Africa. He was followed by Mr. Narcisse Aka (Secretary General, Cour commune de justice et d'arbitrage (CCJA) of OHADA) who spoke about the co-existence of the CCJA among regional African arbitration centres and its contribution to the rule of law. Farouk El-Hosseny, PCA Legal Counsel and executive member of the Mauritius Host Committee, then gave a presentation on the link between the rule of law and investment arbitration.
The second session was moderated by Duncan Bagshaw, barrister at Stephenson Harwood LLP and an executive member of the Mauritius Host Committee. Well-known Malian lawyer Mamadou Konaté gave a presentation on the strengths, weaknesses and threats to international arbitration in Central and Western Africa. He was followed by African arbitration expert, Benoit Le Bars, who explained the peculiarities of the OHADA arbitration system and the need for its greater integration in the African continent. The participation by Judge Dominique Hascher of the French Cour de Cassation was undoubtedly the highlight of the Roadshow. Judge Hascher shared his unique insight on the enforcement of foreign arbitral awards. The session concluded with a thorough presentation by Marie-Andrée Ngwe, Vice-President of the GICAM arbitration centre in Douala, on the diversity of arbitration laws in Africa.
The Roadshow concluded with the customary presentations on ICCA and its mission, the Mauritius International Arbitration project and practical information for delegates who would like to attend the ICCA 2016 Congress in Mauritius.
“Welcome to East Africa”. With these words, the Mauritian Host Committee and ICCA welcomed some 75 delegates to the third pre-Congress Roadshow in Nairobi on 16 September.
Honorary Consul for the Government of Mauritius in Kenya, Mr. Charles Kutwa, warmly invited delegates to enjoy the dialogue and the beaches in Mauritius in May 2016. His words were echoed by Kenyan Government Representative, Senior Deputy Solicitor General Madam Muthoni Kimani, a keen supporter of the development of modern arbitration practice in Kenya, who reiterated the Kenyan government’s support for the process of international arbitration and encouraged Kenyans to join the discussions in Mauritius.
Speakers at the afternoon event included an introduction to the newly-launched Nairobi Centre for International Arbitration (NCIA) by NCIA Acting Registrar Lawrence Muiruri, and an interactive discussion of investment treaty arbitration and the rule of law by the Permanent Court of Arbitration’s Farouk El-Hosseny (who challenged ICCA President Albert Jan van den Berg to define the rule of law – eliciting an invitation to come and find out at the 2016 Congress!). A highlight of the afternoon was Professor van den Berg’s own treatment of the critical role of the regime for the enforcement of arbitral awards, including an analysis of current Kenyan legislation and case law. Nairobi law firm TripleOKLaw’s John Ohaga provided a meticulous and informative overview of current commercial practice and developments in Kenya and East Africa, followed by an application of rule of law theory to the practice of international arbitration by J Miles & Co’s Elizabeth Karanja, and an analysis by former LCIA-MIAC Registrar Duncan Bagshaw (now with Stephenson Harwood) of choice of seat, institutions and arbitrators for African parties. The afternoon concluded with remarks by ICCA Executive Director Lise Bosman about ICCA’s 50-year journey from a small specialist organization to the global network that is today, with 950 members, interest groups, projects, publications and conferences.
Newly-appointed Registrar of the LCIA-MIAC Arbitration Centre in Mauritius Ndanga Kamau closed the afternoon, together with Duncan Bagshaw, with concrete details about the May 2016 Congress. Noting her “passion about diversity in international arbitration”, Ms. Kamau underlined the importance of African participation in all the processes of international arbitration, and invited Kenyans and East Africans to make use of the generous discounts offered to attend the Congress in 2016.
Some vigorous networking continued over drinks at the gracious Fairmont The Norfolk Hotel in central Nairobi, with delegates planning to meet again in May 2016.
ICCA’s second African pre-2016 Congress Roadshow took place in Johannesburg - a busy event that attracted nearly 100 attorneys, advocates and in-house counsel. Developing the day’s rule of law theme, the Keynote Address by South African Deputy Chief Justice Dikgang Moseneke noted that the rule of law is “an entitlement of all African people”. Other speakers addressed various aspects of the relationship of international arbitration with the rule of law, including David Unterhalter SC’s presentation on the role of international arbitration in fostering the rule of law (noting its role in a world in which the administration of justice frequently goes beyond national borders), Claire de Tassigny Schuetze (PCA representative in Mauritius) on investment arbitration, Lise Bosman (ICCA Executive Director) and Duncan Bagshaw (LCIA-MIAC Registrar) on the contribution of regional arbitral institutes, Lindi Nkosi-Thomas SC on current commercial arbitration practice in South Africa, Vlad Movshovich (Webber Wentzel) on investment arbitration in South Africa, and Jackwell Feris (Cliffe Dekker Hofmeyr) on developments in the Southern African region.
The event was hosted at local law firm Webber Wentzel, and concluded with presentations by Lise Bosman on ICCA's history and activities, and by Duncan Bagshaw on the programme and arrangements for the May 2016 Congress. The next pre-Congress Roadshow will be held in Nairobi on Wednesday 16 September.
Report written by Dr. Mohamed Abdel Raouf
The first in a series of five pre-Congress Roadshows was held in Cairo on 14 June 2015 at Sofitel el-Gezira Hotel. The event attracted 100 participants from across the entire arbitration community in Egypt (lawyers, law professors, judges at the Egyptian Courts of Cassation and Appeal, the Egyptian Ministry of Justice and Counselors from the Egyptian State Lawsuits Authority) and included delegates from Bahrain, Jordan, Morocco, Sudan, Syria, Tunisia and Guinea.
The Roadshow program commenced with a welcome speech by His Excellency Mr. Vish Cheetoo, the Chargé d’affaires of the Republic of Mauritius in Cairo, who provided details about the Republic of Mauritius and the 2008 Mauritius International Arbitration Act.
Counselor Amin El Mahdi, former Minister of Parliamentary Affairs and Transitional Justice in Egypt, then delivered the opening speech, which explored the definition of the rule of law that includes legal certainty and fairness of the legal process. He highlighted the role of the international arbitration community in making arbitration an instrument of the rule of law by inter alia adopting rules on transparency and amicus curiae in investor-state arbitrations and by fighting corruption.
In the first session titled “International Arbitration and the Rule of Law”, Dr. Mohamed Abdel Raouf, Director of CRCICA and Vice-President of ICCA, indicated that the emergence of arbitration centers in Africa has contributed to the rule of law by diversifying the available arbitral fora (by making institutional arbitration more accessible, affordable and familiar to African users), in addition to promoting best arbitral practices (through efficient administration of arbitration proceedings, cooperation between arbitral institutions and sometimes innovating new concepts and provisions).
Mr. Farouk El Hosseny, Legal Counsel, Permanent Court of Arbitration (“PCA”), gave a brief introduction to the PCA, its presence in Mauritius and its Secretary-General’s role under the 2008 Mauritius International Arbitration Act. He then covered some PCA-administered investment arbitration cases in which the notion of the rule of law was at stake, such as the Yukos and Bilcon of Delaware cases. He also discussed Lord Bingham’s “Eight Principles of the Rule of Law.”
The second session on “International Arbitration in Africa” was opened by Mr. Duncan Bagshaw, Registrar, LCIA-MIAC, who explained the key indicators of the development of international arbitration in Africa. Some divergences, however, exist between the provisions of the laws of different African jurisdictions, even where inspired by the Model Law, and in their application. He concluded by asking n whether a future harmonization of laws and the creation of a body of Africa-specific jurisprudence are possible.
Mr. Sami Houerbi, Lawyer and Director ICC Arbitration and ADR, Tunis-Dubai, addressed the strengths, weaknesses and threats to arbitration in North Africa. Among the strengths figured the increasingly positive approach of the judiciary towards arbitration and the development of North African law firms. The most important weakness were the limited involvement of North African arbitrators in international arbitration where no African parties are involved, the reluctance to agree on arbitration seats in North Africa, and the weak role played by the majority of the African arbitral institutions. The main threats he identified were the political situation and the economic recession.
In his speech, Dr. Mohamed Abdel Wahab, Professor at Cairo University and founding partner Zulficar and Partners, focused on the level of economic growth in Africa and the percentage of FDI it receives (3.7% of the global inflows). He highlighted the great number of BITs signed by many African states. However, risks related to corruption, lack of legal certainty, policy reversals, poor infrastructure, macro-economic volatility are hindering the economic growth and foreign investments. He concluded that in addition to the existing legal cultures, a third arbitration culture is now being created.
In the third session dedicated to “ICCA and the ICCA Congress 2016”, Dr. Mohamed Abdel Raouf provided an overview of the history of ICCA and its events, publications and projects. Together with Ahmed Hussein, Registrar of the BCDR, they officially launched the Arabic version of ICCA’s Guide for the interpretation of the 1958 New York Convention.
Duncan Bagshaw closed the Roadshow by highlighting some details pertaining to the 2016 ICCA Congress in Mauritius and invited the attendees to participate in the first ICCA Congress to be held in Africa.