African States and the Enforcement of Arbitral Awards: Some Key Issues

Abstract

THE EFFICIENT and effective recognition and enforcement of arbitral awards is critical to the raison d'etre of arbitration. If an arbitral award when rendered cannot be enforced against the debtor, then an essential aspect of arbitration may be defeated. In Africa, it is possible to recognize and enforce an arbitral award under national law and bilateral treaty.1 Various multilateral treaties are also of practica relevance to the issue.2 However, only the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention)3 and the Convention on Settlement of Investment Disputes Between States and Nationals of Other States (The ICSID Convention)4 will be discussed here because of their universal importance and widespread membership in Africa. Some African states that are parties to either bilateral or regional treaties are also parties to the New York Convention or the ICSID Convention and, at times, to both. A few other African states are parties to none of these Conventions. The New York Convention recognizes the validity of bilateral, regional or multilateral treaties entered into by Contracting States for the recognition and enforcement of arbitral awards.5 Thus, the ICSID Convention, which inter alia makes special provisions relating to the recognition and enforcement of arbitral awards arising specifically out of investment disputes between Contracting States and nationals of other Contracting States, is implicitly foreshadowed by, and compatible with, the New York Convention. The provisions of the ICSID Convention are not only independent of those of the New York Convention; they are also specially pertinent to the peculiar regime established. This essay aims to take a close look at some of the key issues involved in enforcing and defending the enforcement of arbitral awards concerning African states under these multilateral treaty regimes. The relevant treaty provisions will be examined …