The Arbitration Foundation of Southern Africa (AFSA) hosted the Johannesburg Arbitration Week (JAW), a flagstone event for international commercial arbitration in Africa during the week of 9 to 11 April 2024. Webber Wentzel, as well as other leading local and international law firms and South African Bars, proudly co-hosted the event. The event was well attended by local and international delegates, including key arbitration practitioners within the Southern African Development Community (SADC) region. The attendance of delegates from the SADC region led to the signing of an AFSA-SADC Alliance Charter, which aims to build a bridge between legal communities across the SADC region.
The conference had various discussions that touched on key developments and issues in arbitration. An overall reflection of JAW was that it demonstrates the strength of Johannesburg's arbitration community and its sophistication as a seat and venue for arbitration. South African and African arbitration practitioners are critical players in the world of international arbitration. Their contribution extends beyond just participating in international cases. They bring valuable insights to global and regional discussions on key developments and challenges in the field. The presence of South Africa's Chief Justice and Deputy Ministry of Justice and Constitutional Development at JAW underscores the nation's strong commitment to arbitration. This goes beyond just recognising the value of arbitration, it signals South Africa's political leadership in promoting and unifying international arbitration practices.
As a co-host, we were part of the plenary session, moderated by Erin Warmington, which focused on the African Continental Free Trade Area (AfCFTA) and the role of dispute resolution in African trade and investment. Panellists Johann Human and Meluleki Nzimande discussed the current framework of AfCFTA and the Dispute Settlement Protocol, which makes provision for the resolution of state-state disputes. However, they argued that it is critical to extend dispute resolution mechanisms to other role players, including investors and civil society. This is critically important in the context of the recently adopted Protocol on Investment. Vlad Movshovich further pointed out that new mechanisms of dispute resolution will need to be developed as the current mechanisms were designed to resolve state-state disputes and include, for example, the withdrawal of concessions, compensation, and other trade measures. Judge David Unterhalter agreed, noting that the remedies need to be relevant to the types of disputes likely to arise under the Investment Protocol.
Panel members emphasised that while investor-state dispute settlement or ISDS mechanisms have been widely criticised, there is a degree of optimism that the substantive provisions of the Investment Protocol are radically different from the bilateral treaties of the past. Investor protections are balanced against internal limitations (aimed, for example, at protecting labour rights, the developmental state, the environment and the public interest more generally), state party rights, investor responsibilities and the possibility of counterclaims, and for this reason, ISDS under AfCFTA could provide for fair, inclusive and effective dispute resolution.
We also hosted a panel discussion about International Treaty Arbitration: ISDS and associated reforms, from a continental perspective. The panel, moderated by Nick Alp, consisted of Matthew Weiniger KC, Toby Landau KC, Dr Fola Adeleke and Sarah McKenzie, debated the need for substantive and procedural reforms to the ISDS system. Some panellists argued that reform should focus on substantive investment law, which should include greater protections and regulatory carve-outs for states. Some of the substantive protections in the AfCFTA Investment Protocol were highlighted as examples of provisions that could lead to gradual but meaningful reform, including specific investor obligations and the many references to sustainable development. It was also noted, however, that a core problem is the fundamental mismatch between the needs and characteristics of investor state disputes and the procedural model we have chosen to impose on their resolution.
Toby Landau KC believes that the depoliticised model we have chosen for investor-state disputes, which was originally intended to take disputes away from diplomatic protection and politics, is no longer appropriate considering the much broader range of disputes being heard by investor-state tribunals. The inclusion of substantive provisions in the AfCFTA Investment Protocol is a major step forward in balancing investor and state rights. What matters now is developing a robust and sufficiently tailored dispute resolution annex to the Protocol on Investment, that meets the needs of the parties involved in African trade and investment.
One of the most difficult challenges we face as an arbitration community in South Africa is trying to build up our reputation as a leading centre of arbitration and overcome the misplaced perception that arbitrations and arbitrators in Africa are second-rate. JAW provided an excellent platform to showcase our abilities in international arbitration and discuss issues in arbitration from a continental perspective. We hope that JAW will become a regular event and that in future years it will draw an even bigger, and more diverse audience.
