Resilience and tech – the catalysts for Africa’s role in international arbitration to grow

The results from the SOAS ‘Arbitration in Africa’ survey (22 pages / 12.7MB PDF), a study co-sponsored by international law firm Pinsent Masons and Nigerian dispute boutique Broderick Bozimo & Co, provide an insight into the acute challenges the Covid-19 pandemic posed to arbitration practice and proceedings in Africa, how arbitration practitioners and parties adapted to those challenges, and how the changes made support progressive, greener working practices that are becoming ever-more important in international arbitration.

Face to face contact played an important role in the way arbitration practitioners and parties engage with one another, with respective legal and expert teams, with the opposing side, and with arbitrators. This was essentially lost when the pandemic first struck. And practitioners, parties and arbitrators alike had to adapt to find new ways of communicating and progress with case preparations, hearings and determinations.

The African arbitration community was not alone in having to adjust usual practices, but the survey has highlighted that the experience in Africa was one of impressive resilience and significant technological change.

Relatively lower levels of connectivity, developed cyber infrastructure, technology literacy and equal access to technology were core challenges faced in African-seated arbitrations, as reflected in the survey.

Delays in proceedings were commonplace for many, especially at the start of the pandemic. At that stage, there had not been widespread adjustment to new ways of working, and poor technology literacy and internet connectivity had a direct impact on the efficiency of arbitral practice. There were also costs associated with developing and making available the necessary technology and underlying infrastructure to enable the new way of working.

In addition, like elsewhere in the world and in other industries, there was the challenge of increased working hours. People were generally more available during periods of lockdown and the lines between work and home life were blurred – many worked long or different hours outside of normal business hours. It appears from the survey that this was despite there being fewer referrals to arbitration and delays to proceedings.

Most of the near-200 respondents to the survey reported significant change to arbitral practice because of the pandemic and while challenges remain for some, 70.3% of the respondents said they were capable of being overcome – that finding underscores the theme of resilience that permeates the survey results.

The key changes that we have seen emerge from the pandemic are technological improvements, greater participation from Africa within the international arbitration community, and greener arbitrations, and we expect these to be lasting fixtures of arbitration on the continent.

Among the technological improvements is the widespread adoption of Zoom and MS Teams – both platforms now routinely facilitate communication between all of those involved in an arbitration, from parties, witnesses, experts and counsel on one side, and with the opposing parties and arbitrators, as well as arbitration practitioners sharing knowledge and building connections. Document sharing and hosting platforms have also become imperative.

There has been a considerable shift to conducting arbitrations, in whole or in part, virtually. The advantages of virtual include more proximate hearing dates, limited paper, less travel, lower costs and greater accessibility for parties to attend hearings, all of which help improve efficiency. Key components of an arbitration process, such as advocate-client team engagements, the service of documents, disclosure, factual and expert witness engagements, and the preparation and finalising of bundles for hearings, are also addressed more efficiently with virtual arbitrations, from both a time and cost perspective.

The shift to virtual arbitration has also been supported by the development and implementation of a variety of virtual hearing protocols. These include the African Arbitration Academy Virtual Hearing Protocol (AAA Protocol), as well as the ICC Checklist for a Protocol on Virtual Hearings and Suggested Clauses for Cyber-Protocols and Procedural Orders Dealing with the Organisation of Virtual Hearings, the Seoul Protocol on Video Conferencing in International Arbitration, the CIArb Guidance Notes on Remote Dispute Resolution Proceedings, and the CIArb Framework Guideline on the use of Technology in International Arbitration. The survey confirmed all are being used throughout the continent.

Technological improvements, coupled with the global shift to virtual working, have also helped to level the international arbitration playing field. Participation in and contribution to the wider international arbitration community has been made more accessible for the African arbitration community, as highlighted in the survey. With the increase in virtual conferences and webinars, for example, networking, knowledge-sharing and collaboration among the African arbitration community and beyond is now being achieved more efficiently, on a wider scale and more inclusively.

The survey results also reveal how arbitration practitioners in Africa believe the shift to greener arbitration and a focus on mitigating the effects of climate change have impacted their activities.

A return to in-person engagement is happening, but slowly. The strong move to digital communication is already a permanent feature for many practitioners. This reduces the need for the production and transport of physical documents, travel and physical hearing arrangements, all of which will aid in minimising the impacts of international arbitration on the environment. Environmental pressures, which are likely to increase, will eventually lead to more conscious decisions in relation to the conduct of arbitrations on the continent in the future.

Overall, the survey demonstrates that, through resilience and evolving technology, the virtual conduct of arbitrations, increased global participation from the African arbitration community and greener arbitrations have revolutionised arbitral practice.