It is widely accepted that the ease of enforcement of foreign arbitral awards is one of the key components of a strong arbitration regime. Whilst Africa is an incredibly diverse continent, with different legal systems in each country, the enforcement regimes for arbitral awards for the majority of countries across Sub-Saharan Africa fall broadly within three categories:
- States that are party to the New York Convention.
- States that are party to the OHADA regime.
- States that are neither party to the New York Convention nor the OHADA regime.
The New York Convention
Membership of the New York Convention is the hallmark of a strong enforcement regime. The New York Convention provides an extensive enforcement regime for foreign arbitration awards, subject only to a limited number of exceptions. Membership is therefore of significant importance for investors who may need to conduct arbitration and/or enforce an arbitral award in African countries and generally provides investors with an effective and predictable tool to seek recognition and enforcement of arbitral awards.
More than half of the states in Africa are party to the New York Convention. Click here to view a map that shows all of the African signatories.
L’Organisation pour L’Harmonisation du Droit des Affaires en Afrique (OHADA)
The OHADA Treaty seeks to provide a harmonised legal framework for the conduct of business in West and Central Africa. Click here to view a map showing the 17 OHADA jurisdictions.
The recognition and enforcement of awards within OHADA member states is governed by the Uniform Act of Arbitration 1999, which provides an effective mechanism for the enforcement of arbitral awards. However, critically, the application of the Uniform Act as regards enforcement is limited to awards made in and sought to be enforced in OHADA member states.
In countries which are neither party to the New York Convention nor an OHADA member state, foreign investors seeking to enforce a foreign award must rely on the enforcement provisions of national arbitration laws, which, by and large, tend to be more onerous than the enforcement regime under the New York Convention, often including requirements such as reciprocity of enforcement by the award-holder’s home state and with wider scope for refusal of recognition.
Foreign investors will therefore need to invest more resources in investigating the position in these countries, and issues such as the judicial attitudes to arbitration become more significant.