Arbitration: Dr Onyema calls time on the claim “there is no expertise in Africa”

Dr Emilia Onyema, SOAS Law professor in arbiitration
Dr Emilia Onyema, 2018, SOAS campus

For over a decade, Dr Emilia Onyema has been teaching International Law and Arbitration at SOAS University of London. And whilst she is well-versed in the laws and customs of markets all over the world, she clearly has a passion for her home continent of Africa.

Born in Nigeria (Onitsha), she grew up in the thriving metropolis of Lagos and attended the University of Jos in central Nigeria to study for the LLB. She moved to London to read for her LLM and PhD, at King’s and Queen Mary’s respectively before returning to Nigeria. She began practicing in 1989 and has worked for several different firms.  

That variety of experience will certainly have played a major role in her teaching and research interests at SOAS. Chiefly concerned with the role of arbitration across international jurisdictions, Emilia has spent the past few years discovering and amplifying the breadth of legal knowledge and experience available within Africa.

What she has found could have profound repercussions for the future of the continent.

But first of all, let’s unpack what arbitration means…

“It simply means how you resolve disputes outside of the court system. So you have litigation before the courts, where you have a formal process in place and you have the State involved. And you then have this private dispute resolution mechanism that mimics litigation, but you have private judges – known as arbitrators. That’s what arbitration is.

“You can have domestic arbitration. But when you talk about international arbitration then you are crossing borders and jurisdictions, which of course brings more complications. You may have different laws applying, different attitudes of the courts and the systems, and different people engaging in the process.”

Tell us about your research…

“My research deals with the development of arbitration in Africa. If we go back to pre-colonial times, we had our own systems and our own processes of resolving disputes. We, being various African communities. And one of the processes we can think about is what we call ‘customary arbitration’ – where you get either the elders in the community, or the chiefs, resolving disputes and imposing a form of punishment or remedial action, which the losing party will need to comply with. With colonisation we then had formal laws, formal court systems and arbitration backed by law.

“If you look at international disputes that affect Africa, what you’d find is that most of it is exported from the continent – a phenomenon we call ‘dispute flight’. So you have investors coming into the continent and they are quite happy to exploit resources, minerals, etc., and conduct their business. But once there’s a dispute they take their dispute outside of the continent. And the impact of that is that African judges, academics and practitioners are not in a position to contribute to the development of arbitration jurisprudence.”

Where are these disputes being decided?

“The vast majority come to Europe – London, Paris and Geneva. And of course the USA, too. It’s easy to see why. If you’re a foreign investor, the system you know, the system your lawyers, your advisers are comfortable with, that is where you want these disputes resolved.

“The narrative that developed from that practise is that there is no expertise on the continent. Now I come from the world of practice – I know there is expertise. And so the question that I wanted to tackle was “how do you show that on the basis of evidence, not just anecdotally?”. So I developed a series of conferences held over four years that would take place on the continent to help me mine that data.  

“The first was held in Addis Ababa in 2015 and basically we looked at what arbitration institutions operate on the continent. I think that is where we had a major impact and had good outcomes, because from our own research we were able to compile – for the first time – what arbitration institutions existed. We found 71 in 39 different jurisdictions. So what that showed us was that there were still sections that didn’t have any institutions at all, which is concerning. And there are some states and regions that have, if you like, too many.  

“Another positive outcome was that for the first time we had Africans meeting other Africans who work in the same field but never knew each other existed. This is somewhat typical – Africans know more about Europe than they know about their neighbours.

“In 2016 we had the next conference in Lagos where we looked at the role of judges.  The third conference, held in Cairo, was in 2017, where we scrutinised the role of the Executive  and legislators in supporting arbitration; and the fourth conference held in Kigali in May this year on the arbitration practitioners themselves.”

Are you now more optimistic that more arbitration will take place domestically in the future?

Yes, I am. We’re seeing an increase in the number of conferences on arbitration in African cities in recent years, African practitioners are learning more about each other all the time. This has become an international discourse.

“We also have some African countries now insisting on either arbitrations happening within the continent or they are appointing more Africans as arbitrators and counsel. This was essentially the goal of the project, so we are very happy to see this happening more frequently.   

“But this is a sustained campaign. We’re not taking our eye off the ball.”

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