Africa ADR

There is a new Arbitration ‘authority’ in Southern Africa this week. It is Africa ADR www.africaadr.com. This new arbitral forum was launched this week. It is a collaborative project between the Arbitration Foundation of Southern Africa (AFSA) with assistance and support from a variety of groups international and domestic.

To begin with the venues for Africa ADR are Mauritius, Mozambique, The Democratic Republic of Congo and three cities in SA. Instrumental in establishing the new arbitral forum were IOD which is the Institute of Directors, South Africa. This organisation is thoroughly English as in English, not British but English. It was started by a King and that makes it really old and important-like cognac. Sorry, is that too impertinent? I have been told that my bad attitude about royalty is because I am American and I am jealous. Seriously??

International commercial arbitration is resorted to when cross-border contracts go pear shaped and there is a clause in them that says, parties cannot sue for damages under this contract, they must go to arbitration. Well-drafted arbitration clauses within contracts can specify the forum or group that will assist in the dispute resolving. Now, with the help of Africa ADR parties can use the clause provided on the website and ensure that their disputes are heard by an African panel of arbitrators. This is invaluable.

If parties have a problem abiding by a contractual obligation, the matter becomes a dispute and goes before an arbitral panel run by Africa ADR. The parties have to pay a forum fee and pay for administration costs. Parties will pay their lawyers and then pay for the cost of renting space at the venue for the arbitration. Parties will pay the arbitrators fees and costs as well. Parties will pay costs al throughout the hearing-then they will get an Award which needs to be enforced by a court.

The Africa ADR announcement encourages potential African states to adopt the New York Convention in order to smooth the way for arbitration in Africa. The New York Convention is a UN sponsored code that can be adopted by governments that orders the judiciary of a nation to enforce awards made in international commercial arbitration. This would ensure that awards are respected and upholds the integrity of the arbitral process. But what if countries do not like the New York convention?

The New York Convention was created in the 1950’s with little or no African influence. It was crafted in 1958 and it for this reason that many African states have not adopted it.

For years, contracts have been drafted by lawyers at white shoe firms whose interests were to ensure that any dispute was resolved in London of New York so that their colleagues could handle that matter. If African businesses begin to put the Africa ADR clause in their contracts then dispute will be handled by this forum, in Africa, before a panel of experts that presumably is African. That would be cool if we could be sure.

Another organisation that supported Africa ADR is 39 Essex Street Chambers-an English Chambers based in London. All helpful no doubt because business is good and they are feeling charitable......right? Unlikely, there is money to be made in this venture. These barristers make money ok, but there is real money in international arbitration. They can represent parties or be an aribtrator, either way there is money to be made. Having an English Chambers involved gives arbitration street cred but it is African…..how exactly? Surely, there is enough arbitration expertise in Africa to have all African support for this forum-African arbitrator, African counsel.

There needs to be a forum for African commercial dispute resolution, for sure. A place, closer than NYC, Paris or LONDON. This forum or several forum--should be where African business can resolve an international dispute based on an arbitration clause in a contract, on their own terms. This is the true nature or arbitration-to select dispute resolution on agreed upon terms.

I like Africa ADR. It has great potential. It is just that once you get outsiders involved, they are not going to want to give up $ to the newly trained African team. There is no transition step in the arbitration business. It is all about getting your foot in the door and never removing it until you can fit yer whole self in in the room. Once this thing gets up and running and making money, the English barristers will not move on and make way for the African. Some parties to disputes may want that English presence. And this is fine...but this makes Africa ADR the choice for parties who like the 'old world' and its lawyers.

This is the beauty of Arbitration. Parties get to choose how they want their dispute resolved.

This new forum for dispute resolution is a hopeful thing. Many disputes will be facilitated and resolved in this forum to be sure. But it should be a beginning of lots of other forums for dispute resolution throughout Africa with support from various sources or none. This is the true nature of Arbitration- consensual and as the parties choose.

http://www.busa.org.za/

http://www.iodsa.co.za/

http://www.arbitration.co.za/pages/default.aspx

http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html

SA apartheid case in US Courts

In the case of In re African Apartheid Litigation, 02 MDL 1499, U.S. District Court, Southern District of New York (Manhattan), Judge Shira Scheindlin in April of this year ruled that claims could go forward against Ford, General Motors, IBM and other companies for aiding and abetting torture by the apartheid government. Judge Scheindlin inherited the case from Southern District Judge John Spizzo who passed away in 2008. The plaintiffs are thousands of South Africans seeking damages for harms inflicted by the white majority under apartheid. The specific claims are brought under the Alien Tort Claims Act 28 U.S.C. §1350 (ATCA) the plaintiffs jurisdiction in US Courts for harms committed by US corporations abroad.

At first, the government of South Africa was against the suit. It filed a Motion to Dismiss. Judge Scheindlin rejected the defendants’ motion to dismiss under the doctrines of comity and political question. In early September that situation changed. Under Thabo Mbeki the SA government was against the case moving forward stating that it would discourage foreign investment in SA. The President Jacob Zuma government is all for the case moving forward. The South African Justice Minister Jeff Radebe wrote a letter to Judge Scheindlin expressing support for the case.

The quote at the beginning of Judge Scheindlin’s opinion reads: “The Truth about apartheid-about its causes and effects…about who was responsible for its maintenance-continue to emerge. This litigation is one element if that emergence.”Archbishop Desmond Tutu. And Commissioners of the Truth and Reconciliation Commission of South Africa. The claims are a violation of international customary law by the aforementioned corporations. The case against IBM is particularly interesting.

IBM sold software and technical assistance to the SA government that allowed the government to carry out geographic segregation and denationalisation. This case is important because of how the court defines the ATCA and how it defines international law as well. There is very little precedent in international law for third party liability. The court relies on standards of secondary liability set by the International Military Tribunal at Nuremberg, the decision of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda as well as the Rome Statue of the International Criminal Court-which all serve to better define the cause of action applicable for aiders and abettors based on the quality of assistance they provide. For IBM, the training and technical support provided for the use of its software is particularly condemning under customary international law. The computers sold to the SA government were used to register individuals and deprive them of their SA citizenship. This software also was used to create identity cards which further facilitated the denationalisation.

This is an unusual case and one of a new breed brought under the ATCA. I am not sure this case belongs in the US court system. However, perhaps the truth is that these cases belong wherever they can best better define international law. If that is in the US then ok. Perhaps, the dollar is no longer king but the US Courts may still provide some kind of leadership in international law. I will follow the case and report its progress.

See http://www.bloomberg.com/apps/news?pid=20601116&sid=a2xm_iMWNc7g

White Rabbit

I followed a case down the rabbit hole this weekend. I post here what I have found. It is mildly interesting. It was the strangest thing to read about a case and not be able to look away. For me, I have not spent this much time looking at and studying a domestic case in years. To be honest, my ultimate conclusion is that arbitration laws in the US are very complex and will employ lawyers who work in the area for decades. I have spent a little time with the English Arbitration Act and even less time with the US Federal Arbitration Act (FAA). The case I discuss here is based on the California Arbitration Act (CAA). It is decided by the Supreme Court of California on the narrowest of legal arguments. For those averse to navel gazing, turn back now….

The cases concern the single issue of whether parties to a contract that contains an arbitration clause, can draft that clause to allow for greater judicial review of the ultimate arbitration award, than would be available under the applicable arbitration statute. One of the hallmarks of arbitration is that it is private dispute resolution with limited review by the courts. This is intended to make arbitration a faster dispute resolution method. That is not the case in the states or elsewhere. Increasingly, arbitration cases carry on as long, if not longer, than litigation. That is for various reasons and different ones depending on whether the case is domestic or international. At any rate, these cases surround a very narrow issue that seems to raise all sorts of fundamental questions. Such as, is arbitration about the contract or party autonomy? That is to say, should courts decide these matters focused on upholding contract law principles or the arbitration principle that parties are free to construct arbitration clauses as they see fit for their purposes? Additionally, the in the states with state and federal arbitration laws very similar but with differences there is always the matter of federalism. Frequently, the FAA pre-empts state arbitration laws which keeps matter simply. The California court was able to work around all of these issues and decide a matter that avoided the FAA. It is maverick and I liked the case because of that. Here are the brief details.

In Cable Connection, Inc. v. DirectTV, Inc. (2008) 44 Cal.4th 1334, the Supreme Court of California managed to throw into question the ability of parties to expand by agreement judicial review of arbitral awards where the arbitrators made an error of law. The Supreme Court of the United States had just settled a split in the circuit courts on this matter when it decided Hall Street Associates, L.L.C. v. Mattel, Inc. (2008) 128 S.Ct. 1396. The Court in Hall Street held that under the FAA, and federal law, parties could not agree to expand judicial review of arbitration awards. The Cable Connection decision was limited to arbitration agreements that were governed by the CAA and where the parties had drafted the agreement to provide for expanded judicial review explicitly and unambiguously. Also, such review was only available under the CAA where arbitrators exceeded their powers (CCP §1286.2,) by committing an error of law or legal reasoning.

Both cases involved business contract disputes. While the decision in Cable Connection is fairly limited, it does represent a break in theory with the approach the US Supreme Court was trying to achieve in terms of expanding judicial review. The Hall Street decision did seem intent on keeping all the circuits on the straight and narrow. Before Hall Street only the 7th, 8th, 9th and 10th circuits thought it was NOT OK to expand judicial review by contract. The other circuits approved of it. What I found interesting was that the commentary about both decisions focused on the basic tenets of arbitration like finality of the award, choice of law, and party autonomy. I wondered why no body saw judicial review for legal error as a big vote of no confidence in private arbitrators and their training. Getting the courts to double check on decisions for legal error is a safeguard parties should have. How can arbitration be reasonably restricted in this way?

These cases were interesting and the one matter that I thought merited comment was one article that described the sad condition of state arbitration laws in comparison to the FAA. I must admit, I had not thought about that. It does however seem that California is trying to carve its own way forward by sticking two fingers up to the Supremes-always interesting. However, arbitration awards would need to be very carefully drafted in order to take advantage of the fact that under the CAA parties can expand judicial review by agreement. So lawyers will be fully employed because of this.

Ultimately, after reading around these issues and the cases, I concluded that international disputes that go to arbitration may actually be better off resolving matter in Europe or elsewhere outside the US. Things are messy and complicated here. England, as far as dispute resolution, is looking mighty good in this light. The English Arbitration Act is concise and forward looking in many ways that the FAA can not dream to be in its present state. The FAA is ambiguous and the decisions of the Supreme Court do not help. For example, the Hall Street decision effectively eviscerated the courts decision in Wilko v. Swan, 346 U.S. 427 (1953), Wilko created the policy that arbitration awards could be vacated for manifest disregard of the law. Manifest disregard is not even mentioned in the FAA. These kinds of decisions are a full employment act for international arbitration lawyers.

These cases were decided last year and they do demonstrate the uncomfortable position arbitration continues to be in here. The FAA has not kept up with the times and maybe the states can make a difference but only through the back door at this point.

See
Derek Scott, Note and Comment: The Zen of Arbitration: Contracting for Judicial Review of Arbitration Awards, 29 Whittier L. Rev., 743 (2008)

Edward Brunet, The Minimal Role of Federalism and State Law in Arbitration, 8 Nev. L. J. 326 (2007)

Pacta servanda sunt

In 2008, a Tribunal ruled against the government of Zimbabwe. The case concerned white commercial farmers whose land was acquired by the government as part of the land reform programme. The Tribunal ruled that it was illegal for Zimbabwe to take the farmers land. A few days ago, the government of Zimbabwe denied the legitimacy of the SADC Tribunal. Why is the international arbitration and alternative dispute resolution (adr) community silent about this?

The legitimacy of the Tribunal’s jurisdiction is what is really at the heart of Zim’s latest manoeuvre. The question surrounds the Tribunal’s competency to hear this dispute and issue an award. In general, if a tribunal is competent, meaning it has jurisdiction, then the parties are bound by tribunal decisions. The Justice Minister of Zim is arguing that the SADC Tribunal had no jurisdiction over the farmer disputes and consequently, Zim is not bound by any decision of the Tribunal. Zim is arguing that the SADC Treaty provisions establishing the Tribunal required further ratification by member states before it was competent to hear disputes and rule on them. Up until that ratification the Tribunal, as an institution of SADC, was incapable of deciding matters.

Below I provide the Treaty provisions for your enjoyment. There may be a (weak) argument that Article 16(2) is ambiguous and it is unclear whether the Protocol for the Tribunal was incorporated in to the Treaty itself. If it was, then the Tribunal was legitimate on the day the general SADC Treaty was ratified. (17 August 1992) If the Protocol required separate ratification of two-thirds of the SADC’s 15 members, then that has not yet happened.

Even though the Treaty discussion is exciting, lawyer-justifying activity, this all begs the question of why the government of Zimbabwe participated in the hearings and expressly agreed to the Tribunal’s jurisdiction throughout the entire case only to argue 10 months after the main ruling that the Tribunal has no jurisdiction? There is no legal loophole here. The rulings written by the Tribunal all cover the jurisdiction of the Tribunal over the matter at hand. Whether it was the main case or the request for interim measures by the commercial farmers not to be ejected from the land until a decision was issued by the Tribunal, each discussed jurisdiction. No objection was raised by the respondent Zimbabwe. That means they accepted the Tribunal's competency and they are bound by it's decisions.

This is not about legal procedure. This is about respect for processes that go on everyday all over the world. Arbitration and adjudication happen in countries all over the world regardless of the race, creed or colour of any of the parties. There is no requirement for democracy to have a tribunal formed, with the consent of parties, to preside over disputes. This is about respecting agreements. That is certainly not an idea that the West owns. This is about agreements between African nations by and for their own benefit. It is also about a process of dispute resolution that has been going on in Africa and the West for centuries. Why are advocates for international and domestic arbitration not making more noise about what is happening in this situation?

The community of lawyers, academics, associations and forums who promote adr and arbitration must be more active in supporting the SADC Tribunal. Legitimacy in terms of the law is not just about formal courts and proper legislation. That is what is so ultra-cool about things like arbitration. It can resolve disputes without a lot of legal stuff. Parties agree on how to resolve things, submit themselves to the Tribunal, and obey the decision. There is a rich and powerful community which should be more involved. This is an opportunity to support an emerging dispute resolution forum in a place where it is sorely needed.

Where are those voices??

Thanks again to JRW!

Article 16(2) of the SADC Treaty reads “the composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol, which shall, notwithstanding the provisions of Article 22 of this Treaty, form an integral part of this Treaty, adopted by the Summit.” Article 22 of the Treaty states that no Protocol is binding on member states unless it is ratified by two-thirds of the SADC signatories. The Protocol for the Tribunal has not been ratified by two-thirds of the member states of SADC.

SEE

http://blog.amnestyusa.org/author/sarah-hager/

http://www.zimbabwesituation.com/sep7_2009.html

www.sadc.int

Doonesbury is still relevant

Wickus loves Tania and Neill loves Joburg: Can America learn to understand SA??

For years we have seen movies about Africa that are, for the most part, negative-full of war and disease. District 9 is different: it’s a love story.

It was written by South African, Neill Blomkamp, who then casts his mate as the Afrikaaner bureaucrat, Wickus Van De Merwe. It’s a love story and I loved it right back. I loved the film because it was refreshing and different-Peter Jackson produced it-and I am glad this film replaced Halo. In the states, mostly, the movie was understood as a political metaphor awkwardly dressed as a sci-fi thriller. It is time Americans showed a little more understanding of South Africa.

In a review of District 9, the writers for a New York City online magazine worried about the metaphor of segregation set in such a segregated place like South Africa.

To get back to the desert of the real, though, did you get the uneasy feeling, as I did, that setting a sci-fi film about a systematically marginalized population in a city and country that really are terrifyingly segregated and fraught with inequality somehow does injustice to the seriousness of the actual situation in South Africa?

http://www.thelmagazine.com/TheMeasure/archives/2009/08/14/whats-that-in-the-sky-is-it-a-spaceship-no-its-a-metaphor

WTF?? Did these reviewers say the same thing about every movie set in NYC, LA or DC that has to do with segregation, (Mississippi Burning) corruption, (Training Day) and the evils of not recycling? (The Day after Tomorrow) Where is the introspection? New Yorkers are so parochial.

Americans think South Africa is bad and bad things happen there and continue to happen there. An African friend once told me that he thought white South Africans seemed uncomfortable in Africa. I think about that sometimes. I think about it because I frequently feel very uncomfortable in Africa. I think about it because at the bottom of it all, Americans today have a singular, historical relationship with sub-Saharan Africa.

Obama’s visit to Ghana and the slave dungeons really illustrates this. The choice of Ghana was symbolic for Africans and Americans. Americans today have an equally simplistic understanding of South Africa and it has to do only with apartheid. Can I possibly appreciate what it means to be South African?

South Africa has the largest economy on the continent. Many Afrikaaners voted for the changes in government that put an end to apartheid. Americans, limited by their inability to insist on good global news coverage, know very little about the complexities of the political scene in South Africa. They know only enough. I am not sure Hillary’s recent visit to SA provided much more info.

The news reports after her visit did seem to indicate that she got on well with President Zuma-a vast change from the previous administrations divided by Mugabe and Iraq. The focus of their talks focused on making progress on reform in Zimbabwe (tee hee) and the hot topics in Africa, according to America,-Sudan, Somalia and trade. Ok, well we can all guess how much progress will be made in all of those areas but at least we both have new administrations and they are talking to each other. It is not a huge step toward understanding but I have come to appreciate baby steps towards progress. We all start life that way-unless you are alien then, as Wickus showed us, you start out in an entirely different way!

After I saw District 9, I thought about all the things SA and the US have in common. We both have very violent cultures. The English are not violent like us. They are hooligans but this is sporadic, often childish, drunken, violence. There is a high tolerance for everyday violence in the US-well at least in most urban areas, particularly LA. I guess one could/should say it’s bad. It is a reality and it is cultural.

One lecture I heard during the recent Law and Society meeting was by Professor Jonathan Klaaren (University of the Witwatersrand, Johannesburg), who spoke about xenophobia in South Africa. Specifically his paper looked at violence against the Zimbabwe refugees. His conclusion was that part of the South African national identity, post-apartheid, was the preservation of a kind of purity of nationality that lent itself to xenophobia. I was so impressed to hear a thoughtful considered explanation for violence that also did not excuse it in any way. It gave me a little more insight into SA and its complicated relations with its neighbours. All very fascinating as I sit only a few hours from the Mexican border.

District 9 was really entertaining (and violent!!). All of this is simplistic, I agree. But this film is new and it is a change. Film is a powerful medium and this one was a major commercial success. That, at least, has some meaning. It is a beginning in a baby step kind of way. For me, I think Joburg is a formidable city-one to respect and maybe, love.

See, http://tvtropes.org/pmwiki/pmwiki.php/Main/District9