DIVERSITY IN INTERNATIONAL ARBITRATION: RECOGNISING THE DEVELOPMENT OF “ARBITRATION CONSCIOUSNESS” IN AFRICA

November 15, 2016

Diversity as a worldwide phenomenon has challenged the minds of many a great men. As Martin Luther King Jr. once said, “An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity”. The need for diversity in all areas cannot be emphasized enough. In order to ensure holistic growth and development, individuals must learn to tap into the experiences, thoughts and cultures of other people who may be fundamentally different from them. The time has come for the concept of diversity to be welcomed with wide-open arms in all aspects of life, particularly on the international front in order to promote international comity. The aim of this paper is to discuss African diversity within the international framework, to be specific, within international arbitration. The paragraphs below would delve into matters concerning Africa’s historic and present role in international commerce, Africa’s place on the international arbitration scene and the importance of African arbitrators as a means of diversifying the international arbitration environment. A. THE ROLE OF AFRICA IN INTERNATIONAL COMMERCE African Countries have always played a part in international commerce. History has it that civilization started in Africa. The shores of Africa have been the hub for international trade since trading begun; international commerce hence is no stranger to Africa. According to data by the World Bank, a large chunk of the GDP of African Countries can be attributed to international trade and investments. Africa currently 1 By Bobby Banson, ESQ, MCIArb.  The author is a Lead Consultant with Smith & Adelaide Law, a boutique Law firm in Accra, Ghana with interest in in International Commercial Arbitration. 2 http://data.worldbank.org/indicator/NE.TRD.GNFS.ZS receives about four percent (4%) of foreign direct investment. This is set to increase in the next decade. Research shows African Countries have been dragged before many an international arbitration center as compared to other countries with the exception of South America. With the growth of international commercial relations between countries and individuals, there is a need for treaties and agreements to protect  not only the sovereignty of the state, but the interest of the private individuals and corporations involved. In his article titled “International Investment Law and Arbitration: A Conceptual Framework”, Robert Howsementions that the use of international law to protect the interests of foreign investors started in the 19th century when capital exporting countries sought to use the customary law of diplomatic protection of foreigners primarily against states in the global South. Where there is an agreement, the possibility of a breach is real. In international commerce, the question in cases of a breach, very often is, “what is the proper forum for the settlement of disputes and issues that may arise out of an international commercial transaction?” As an attempt to balance the interest of both parties, most scholars agree that the proper forum would be one that is neutral: a forum in neither party’s state nor country. It is for this reason that international commercial arbitration has gained permanency in the international legal system – as a means of ensuring a fair and neutral forum for the settlement […]

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