Localisation of international commercial arbitration on the African continent: the role of arbitral institutions and their gate keeper function in East Africa

Abstract

This qualitative study explored how African Arbitral Institutions (AAIs) can ensure that the necessary experience such as due processes, fair hearing and ethics is applied to promote Arbitration in three East African countries, namely; Uganda, Kenya and Rwanda. The rationale is that commercial sector, Arbitration in Africa has risen in response to the many challenges and risks that investor foresee. The study was guided by three major objectives: To highlight the underlying contextual impediments to the acceptance of arbitration from one East African Jurisdiction to another, to illustrate how AAIs are well positioned to deal with these particular problems through exercising their gatekeeper powers liberally, and to make the overarching point that AAIs within the EAC region can effectively gain an international recognition boasted by the ICC and LCIA through collaboration with one another. The study undertook a comparative analysis of the various Laws, case law and scholarly works on the functions of arbitral institutions, through desk review of both physical and online review of secondary sources. The major thesis is that despite African arbitrators having expertise in handling disputes through formal procedures, they may not necessarily be having the requisite experience. Expertise was taken to mean the legal and formal training that arbitrators possess, while experience was understood as the ethical professionalism that should applied to arbitral proceedings. Among the study findings is that AIs mainly operate Adhoc, due to practitioner inexperience. Also, mistrust, limited oversight and supervision on privately owned AIs in East Africa was found to be a limitation to their full functionality. The study recommends that AIs in the countries of Kenya, Rwanda and Uganda should popularise their services to increase public awareness. But also strive to be more professional in their services so as to build more trust. And finally, the study recommends that AIs in East African should collaborate and benchmark with global HRWEAIs to learn and adopt best practices so as to be more attractive and relevant.