Africa represents an immense growth opportunity for companies in the mining and construction sectors. Throughout Africa, there are currently over $500 billion worth of infrastructure projects underway, with a mining market estimated to be worth $248 trillion. Across the continent, arbitration has become an increasingly popular key tool for resolving disputes. Events like UNCITRAL Days in Africa (2022–2023) have helped enhance the attractiveness of arbitration, engaging universities, practitioners, and policymakers across many African countries.
Author: Paul Woodward, Chief Executive Officer, Johannesburg, Tiefenthaler Legal
Most African countries derive their regulatory frameworks from the New York Convention and this system continues to evolve through the creation of regimes like the Organisation for the Harmonisation of Business Law in Africa (“OHADA”)[1]. These frameworks aim to regulate each country’s arbitration system while making the region more attractive to investors, governments, developers, mining houses and international contractors, all of whom look for the certainty associated with fair process, swift outcomes, and enforceability of parties’ contractual rights and arbitration decisions.
In The Transformation of Arbitration in Africa[2], Emilia Onyema argues that the continent’s arbitration frameworks are still heavily shaped by Western legal traditions. Onyema’s central hypothesis is that, while arbitration is gaining traction in Africa, its true transformation depends on the rise and credibility of African arbitral institutions, which must evolve beyond mere replication of foreign models to reflect local realities and needs. It is also critical for investment into the continent that the enforcement of contractual rights, Arbitral awards and the procedures for such enforcement are fair, transparent and robust.
This evolution is already underway. Regional regimes like the OHADA have created unified arbitration laws across 17 member states. OHADA’s framework has been lauded in the 2024 Alternative Dispute Resolution Journal for enhancing enforcement certainty and reducing jurisdictional fragmentation.
However, navigating Africa’s legal terrain remains complex. As highlighted in the CIArb Kenya Journal[3], national courts still play a critical role in enforcement, and their interpretations of public policy and procedural fairness vary widely. The journal also underscores the tension between formal arbitration and traditional dispute resolution mechanisms, especially in East Africa, where community-based approaches continue to influence legal culture.
OHADA comprises mainly 17 Francophone states which provides the continent’s most extensive legal harmonisation project. Within OHADA, two systems govern arbitration:
- The Uniform Act on Arbitration (UAA), which applies directly in member states and reflects international best practices. It aims to safe-guard party autonomy, fair procedures, and the competence of arbitral tribunals.
- The Common Court of Justice and Arbitration (CCJA), based in Abidjan, Ivory Coast, which functions both as a judiciary and an arbitral institution. Awards rendered under CCJA auspices benefit from streamlined enforcement across all OHADA countries.
The greatest strength of this system is its enforcement power. An arbitral award made under OHADA does not need to go through lengthy national court processes. Instead, it is immediately enforceable across all 17 member states, giving businesses and investors’ confidence that decisions will be complied with across borders.
Within OHADA member states, parties enjoy considerable freedom when choosing the law that will govern their contracts. If they cannot reach an agreement, the arbitral tribunal applies established conflict of law rules to decide which law should apply. Procedurally, parties may opt for CCJA rules or tailor the process via the UAA, provided that minimal standards, such as equal treatment of parties and observance of due process, are safeguarded. This not only protects fairness but also promotes neutrality and efficiency, making it easier to handle complex situations or managing parallel proceedings.
Not all African countries fall under the OHADA system. Across the rest of the continent, approaches to arbitration vary, but many states are moving closer to international best practice:
- South Africa: The International Arbitration Act brings South African law in line with the UNCITRAL Model Law. Courts generally uphold arbitral awards and only interferes where there are concerns about due process or violations of public policy.
- Nigeria: Nigeria’s courts recognise and enforce arbitral awards. However, enforcement can still be challenged on grounds such as fraud, incapacity of a party, or public policy objections.
- Anglophone Africa (e.g. Kenya, Ghana): These countries have modernised their arbitration laws and are parties to the New York Convention, which makes cross-border enforcement easier.
- North Africa (Egypt, Morocco): Both countries maintain robust, modern arbitration frameworks and support enforcement under the New York Convention, though unpredictable court intervention may occur.
Most OHADA states and leading African commercial economies are signatories to the New York Convention, which compels courts in member states to recognise and enforce arbitral awards made in the territory of another contracting state, subject only to limited defences such as incapacity, improper notice, excess of authority, procedural irregularity, finality, and public policy breaches.
Notwithstanding this, practical obstacles, such as court delays and procedural challenges remain risks in enforcement. Accordingly, while arbitration provides a tested framework for resolving disputes, enforcing arbitral awards in Africa can still be challenging. Some of the main issues commonly encountered include:
- Uneven judicial experience: In certain jurisdictions, judges may be unfamiliar with arbitration principles. This can lead to courts unnecessarily re-examining the merits of a case or applying the “public policy” exception too broadly.
- Political risk and state immunity: If the award is against a government or a state-owned entity, enforcement may require special waivers or government approvals, making the process politically sensitive.
- Procedural hurdles: Local court rules, bureaucratic delays, or high costs can frustrate or prolong enforcement even where international treaties apply.
To reduce the risk of enforcement problems, parties are encouraged to build protective measures into their contracts, including:
- Choosing the right seat of arbitration, by selecting a country where the framework for the enforcement of arbitration awards is well established.
- Securing sufficient financial safeguards, such as guarantees issued from first class international institutions and, where risk is anticipated, guarantees that are enforceable in established jurisdictions.
- Drafting clear arbitration clauses to ensure that awards are binding not just on the immediate contracting party, but also on parent companies and affiliates, if appropriate.
The employment of appropriate safeguards can help ensure that both local and international stakeholders are able to capitalise on the lucrative and burgeoning African construction and mining landscape while limiting the risks associated with identified uncertainty.
This article was originally written for issue 29 of the Diales Digest. You can view the publication here: https://www.diales.com/diales-digest-issue-29
1. OHADA - Uniform Act on arbitration (www.droit-afrique.com)
2. E Onyema (2016) The Transformation of Arbitration in Africa: The Role of Arbitral Institutions. Kluwer Law International B.V. Netherlands.
3. Chartered Institute of Arbitrators (Kenya Branch) (2019) Alternative Dispute Resolution Volume 7 Number 2