1. INTRODUCTION 1.1 What this paper is About The topic requires a discussion on how Arbitral Awards can be enforced. It is trite that Arbitration Clauses could be included in contracts between non-State entities and also in treaties executed between States. This paper is however only focused on the enforcement of arbitral awards arising from arbitration which is occasioned by an International Investment Treaty (IIT). An IIT could be Bilateral or Multilateral. 1.2 Brief Historical Account of Arbitration The earliest mention of arbitration as a means of settling international disputes dates back from the early fourteenth century. Pierre Dubois, a French publicist, wrote a pamphlet for the recovery of Holy Lands in which he advocated that arbitration was essential to the success of each Crusade. Since then the World has made significant progress on international arbitration as evinced by the establishment of the Permanent Court of Arbitration in 1899, the International Court of Arbitration after World War I in 1923 and the International Centre for Settlement of Investment Disputes (ICSID) in 1966. 2. ENFORCEMENT OF ARBITRAL AWARDS ARISING FROM IITs. 2.1 Recognition and Enforcement 1 De Recuperatione Terre Sancte: traité de politique Générale, published 1981 by Paris A. Picard 2 https://icsid.worldbank.org/en/Pages/about/default.aspx visited on 3rd September 2018 These two words are often used together when it comes to this subject. Foreign Arbitral Awards must first be recognised by a Country, before same can be enforced in that Country. An Award-Creditor, may choose to only seek the recognition of the award without seeking to enforce same. Indeed, some awards may be merely declaratory in nature with no executable/enforceable orders. An Award Creditor who is merely seeking to have the award recognised, without proceeding to enforce same, may choose this path as a means of using the award as a Shield against any attempt by the Award Debtor (or related party) to re-litigate the matter before domestic courts. Where an Award Creditor however proceeds to enforce an award, that Award Creditor is deemed to have taken steps not only to have the award recognised but also to execute the award by using the procedures of the domestic court to attach the assets of the Award Debtor and liquidate same in satisfaction of the Award debt. That way, the Award becomes a sword in the hands of the Award Creditor. An Award cannot be enforced in a Country unless the Country has first recognised same. However, an application can be made to have an award recognised without necessarily steps being taken to have same enforced. Again, where a Party voluntarily submits to an Award by obliging the orders contained in the award and making payments of the amounts awarded in favor of the Award Creditor, there will be no need for an Award to be enforced through the court system. 2.2 Regimes for Recognition and Enforcement of Arbitral Awards There are two main legal regimes which regulate the recognition and enforcement of international arbitral awards. Enforcement could be done under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards or under the International Center for Settlement of Investment Disputes (ICSID) […]Continue Reading
DIVERSITY IN INTERNATIONAL ARBITRATION: RECOGNISING THE DEVELOPMENT OF “ARBITRATION CONSCIOUSNESS” IN AFRICA
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. 1 By Bobby Banson, ESQ, FCIArb. The author is a Lead Consultant with Smith & Adelaide Law, a boutique Law firm in Accra, Ghana with interest in in International Commercial Arbitration. 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 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: 2 http://data.worldbank.org/indicator/NE.TRD.GNFS.ZS 3 The African Investment Report 2016 4 See the International Center for Settlement of Investment Dispute (ICSID) Caseload Statistics (2016) which indicated that 23% of all cases related to investment in Africa, second only to South America which had 24% of the cases. A Conceptual Framework”, Robert Howse mentions 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 […]Continue Reading
THE AFRICAN CONTINENTAL FREE TRADE AGREEMENT: THE BIRTH OF A NEW ERA BY Bobby Banson Esq. FCIArb and Enyimnyam Paintsil LLB.
*Formerly titled The African Continental Free Trade Agreement: Much Ado about Nothing? 1. INTRODUCTION In recent times, the economies of African States have shown promise and growth particularly in Sub-Saharan Africa. For the economies in Sub-Saharan Africa, the World Bank predicts a growth of 3.1% for the year 2018 from the 2.6% growth experienced in 2017. This is largely attributable to an increment in investment, both foreign and domestic. The relationship between the two is thus important to the economic development of the continent as a whole. Attempts to increase investments in the region is now complemented by the creation of the African Continental Free Trade Agreement (ACFTA); an Agreement with the objective of boosting intra-African trade development across the continent and regional integration. The objective of this paper among others is to discuss the experience of African States in respect of foreign investments, measures taken to increase said investment and the implications of the African Continental Free Trade Agreement on the economy of the continent. 1. INCREASING FOREIGN INVESTMENT IN AFRICA, EXPERIENCES AND MEASURES TAKEN 1.1. What is Foreign Investment 1 The Author is a Lead Consultant of Robert Smith &Adelaide Law, which is a boutique law firm based in Accra-Ghana 2 http://www.worldbank.org/en/publication/global-economic-prospects last visited on 26Th June 2018 The term “Foreign Investment” most often loosely refers to Foreign Direct Investment (FDI). The Organisation for Economic Co-operation and Development (OECD) defines FDI as the category of international investment that reflects the objective of a resident entity in one economy to obtain a lasting interest in an enterprise resident in another economy. The term FDI is also defined in the fourth edition of the Balance of Payments Manual (BPM5) by the International Monetary Fund (IMF) as a category of international investment made by a resident entity in one economy (direct investor) with the objective of establishing a lasting interest in an enterprise resident in an economy other than that of the investor (direct investment enterprise). To establish a direct investment link between the investor and the enterprise, the investor must own at least 10% of the ordinary shares or voting power of the enterprise. 1.2. History of Foreign Investments in Africa Understandably Africa has had quite the history with FDI. Much skepticism has been displayed by foreign investors in regards to Africa. This skepticism is rooted in the history, ideology, and the politics of the post-independence period of Africa. As history has it, the arrival of Europeans in Africa in the 15th century for the purposes of trade is considered a pre-cursor to slavery and colonialism. Due to this, the immediate post-colonial era showed 3 Benchmark Definition of Foreign Direct Investment 2008 (BD 4), pg 234, Fourth Edition – ISBN 978-92-64-04573-6 – © OECD 2008 4 https://www.imf.org/external/np/sta/di/glossary.pdf page 3, visited on 26TH June 2018 5 Benchmark Definition of Foreign Direct Investment 2008 (BD4), pg 234, Fourth Edition – ISBN 978-92-64-04573-6 – © OECD 2008 Foreign Investment” by M. Somarajah, the author notes that the foreign investor’s greatest threat is the expropriation of investments by the host country. Nationalisation could be a great tool and opportunity for economic growth in Africa. […]Continue Reading