Colonialism is a funny thing, because even when it is supposedly gone, its influences linger on… for better or worse. Take Africa for example.
I remember life in English-speaking Ghana during the heady days of the early sixties as a tide of independence swept across Africa: so much enthusiasm, so much energy at the prospect of what the future might bring. This was the time of Kwame Nkrumah and the CPP.
Later, during the 70’s living in the French-speaking People’s Republic of Benin which had previously been a French colony and part of Afrique Occidentale Française, I observed there was still excitement even if tempered by the realities of over a decade of self-governance in the post-colonial era.
Perhaps because I was an American living in Africa and viewed the world through a different prism than my English and French peers, living in both Ghana and Benin opened my eyes not only to the incredible warmth, genuineness and openness of my hosts, but also to the ever present strands of colonialism that seemed to tug on people’s minds and influence their actions. This was manifest in obvious ways in trade and commerce. For example following independence (and well before cell phones) a phone call from a person in a former French colony to a former English colony would be routed first through Paris then to London and then on to the person being called in the English colony. This even though the two people on the phone might have been only standing 100 kilometers apart.
Likewise, to fly from a former English colony to a former French, one meant taking the airline to London, then on to Paris, and then back south to your destination covering many more thousands of kilometers than a proverbial crow would have to fly. It seems implausible now, but the backbone of this system remains if you care to look for it.
It was also manifest in less obvious ways, through language and culture, and tradition of sending children to be educated in England or France as the case may be, before returning home to take up life as leaders in government, the professions, business or the church.
These strands are enduring and cross-generational. And ties to the former colonial powers endure. For example, the qualifications of most lawyers from Africa that I encounter contain at least a reference to England or France somewhere in their professional background. Obviously it is valued. Yet this at a time when the majority of those currently practicing were born after independence.
What does this have to do with resolving business disputes across borders, specifically in the field of international arbitration? The issue in my mind is not whether independence brought true freedom; it is rather whether it unconsciously limits ones freedom to maneuver. Rather than answer that question, which I would not presume to because it would be a guess, I propose that my colleagues in Africa consider the adage of ancient mariners to “steer by the stars and not by your wake” when making decisions about how to handle decisions relating to international arbitration.
“Stars” are an analogy to fixed reference points upon which one can take bearings and navigate towards. “Wake” refers to the phosphorescent plume of history which trails behind the boat, which tells us where we have been but has only limited usefulness in how to steer forward.
In our field, the constellation of treaties and laws that comprise the field of international arbitration are the stars, with the New York Convention being the North Star (visible at least for those in the Northern hemisphere!). The wake is….history.
The New York Convention in words and in practical application tells us what constitutes an award that will be recognized and enforced, or what will cause an award not to be recognized and therefore not enforceable. Among the principles are a full and fair opportunity to present ones case in procedural fairness.
Nowhere does it name a place, except, one supposes, by reference to countries signatory to the treaty.
Therefore, place is of less importance than procedure and the fair application of substantive law. Technically you could hold your arbitration pretty much anywhere in the world, preferably in a seat that is a signatory to the New York Convention.
So then, I submit, why limit ourselves when it comes to selecting a venue for our dispute, to the traditional centers of London and Paris? Certainly there is a robust infrastructure in place in both cities, with institutions, advocates and neutrals of world class standing.
Instead, rather that defaulting to London or Paris, other options abound that lack that baggage of history and are welcoming. They also offer additional diversity of thought – propelled by culture, skill sets and legal traditions.
Increasingly around the world, there is a growing cadre of well trained and otherwise brilliant advocates and neutrals ready to resolve disputes, at significant cost savings to the traditional European model.
Through my work at the Chartered Institute of Arbitrators (CIArb) I have become privileged to know many not only informally but through the rigorous training and vetting process of the institute, and committee work. There are a lot of really outstanding dispute resolvers around the globe!
To open the world’s doors even wider, barriers to cross border practice of law are being lowered in many forward-looking jurisdictions when it comes to international commercial arbitration. Further, the arbitration communities in many of the emerging arbitral seats embrace an entrepreneurial and open spirit that makes them more welcoming to African advocates and neutrals as full-fledged equals than in some of the more traditional, established arbitration venues, where the arbitration community can be more ‘clubby’ and less of an open shop.
Options abound:
- On the African continent, for example, centers are springing up keen to help resolve disputes, and are building caseloads. Notably in Kigali (KIAC- Kigali International Arbitration Center), Accra (the Ghanaian Arbitration Centre), Lagos (LACIAC-The Lagos Chamber of Commerce International Arbitration Center) and Johannesburg with respect to English speaking venues, but also under the Organization for Harmonization of Business Law in Africa (OHADA) which is marshalling the French-speaking countries in West and Central Africa. And in North Africa, the Cairo Regional Center for International Commercial Arbitration (CRICICA) has been hosting International arbitrations for over 35 years!
- One can also look East and West rather than limit ones vision to the North. To the East of you, there is no doubt that you can get a “level playing field” for an arbitration in Dubai, Singapore, Mauritius (a seat uniquely having one foot in Africa and the other in Asia) with its LCIA-MIAC Arbitration Centre, or Kuala Lumpur, or any of a number of venues in Asia plus Australia and New Zealand, with superb advocates and neutrals there…. or bring your own.
- To the West of you, I have interest in promoting the Americas, particularly Atlanta “the city too busy to hate” and Miami. Living in the Southeastern part of the US, I am professionally vested in the international arbitration community and industry here and in the rest of the Americas – from Alaska through to the Tierra Del Fuego – where I have lived and worked (including Latin America and the Caribbean) and so my personal preferences are closer to home. Try us, you’ll be delighted.
The point is that in the 21st century the horizon for international commercial arbitration has changed. And with it, our options.
Philip W. “Whit” Engle, FCIArb, JD, MBA is a business attorney, solicitor, mediator and arbitrator in the area of international trade and investment. Deals. Disputes. Done!
