Consent to Arbitration: African States’ Practice

Abstract

There is no gainsaying that arbitration is at the center of contemporary discourse and the practice of international litigation and dispute settlement. Africa has not been left out of this trend.2 Dispute resolution on the continent or involving African countries can be categorized into three main forms: (i) the normal domestic court processes for resolving economic and other disputes; (ii) investment treaty disputes in which African countries are primarily defendants or respondents; and (iii) international commercial dispute settlements using arbitration. There are no easy or comprehensive statistics on domestic judicial processes of dispute settlement but statistics on international arbitration—investor–State or commercial—point to an astronomical rise in the use of arbitration as a means of resolving international economic disputes. According to the International Centre for the Settlement of Investment Disputes (ICSID) Secretariat, fewer than 30 cases were filed there in the two decades between 1972 and 1992, but since the turn of the millennium the average number of cases in a single year has been 20.3 The trend in Africa clearly mirrors that of the global trajectory as captured by ICSID. In the last 15 years, African countries have been parties to about 15 percent of ICSID cases. The figure could be much higher if the participation of all African countries were categorized as such rather than being classified as lying either north or south of the Sahara.