Arbitrability and public policy: an African perspective

Abstract

Growth in international trade has led to considerable expansion of the scope of matters capable of settlement by arbitration. In spite of sustained scholarly activity on arbitrability, the question of what is arbitrable remains controversial but relevant in many regions of the world, including Africa. Arbitrability has the potential to affect the validity of an arbitration agreement, strip an arbitrator of jurisdiction, or derail enforcement of an award. Given the significance of the concept, it is vital that entities involved in international transactions do not speciously extrapolate knowledge of what pertains in Europe and America across all jurisdictions and regions of the world. This study draws a comparison between arbitrability and its relationship with public policy in Europe and America on one hand, and the trend in Africa in an attempt to critically investigate the extent to which African states are willing to extend the scope of arbitrable subject matters. A number of trends on arbitrability are discernible. Most commercial disputes are arbitrable and this observation generally aligns with practice in Europe and America. Beyond this, there are three significant differences in the areas of scope of subject matter, approaches to arbitrability regulation and the role of public policy.