At conferences and seminars, when the issue of the lack of visibility of African arbitration practitioners in domestic and international arbitration is raised, the often-given reasons are: African arbitration practitioners lack capacity, and those who have the capacity are not easily identified. SOAS in collaboration with other partners surveyed African arbitration practitioners to give them a voice to speak to the global arbitration market on why there is a lack of participation of African arbitration practitioners in domestic and international arbitration.http://eprints.soas.ac.uk/25741/. This post focuses on retaining African arbitration practitioners and law firms as counsel in arbitration.
In the survey about 42.4 % of the survey takers responded to have acted as counsel in one to five disputes, 12 % in six to ten disputes and about 10% have acted in fifteen or more disputes during the reporting period of the survey. Out of this data, 90.9 % indicated that they are lawyers with 73.3 % of them working out of law firms. 40.3 % of the surveys have not acted as counsel in any arbitration, and 26.7% indicated no affiliations with law firms.
The numbers reported in the survey of African arbitration practitioners acting as counsel is overall positive. However, there are some issues which were not answered by the responses given by the survey takers, thus leaving questions raised in this post.
One of the critical information missing from the survey is whether the lawyers who responded as having acted as counsel are in an international law firm, domestic law firm, prominent law firm or medium to a small law firm. It is essential to examine this issue because it goes to the core of the issue of entry into arbitration practice.
Global law firms from Europe and the United States dominate international arbitration with other firms across the world having some participatory roles. In selecting a firm or an arbitrator, the standard practice is to go with the “safe choice” which is the typical big global firm or an established arbitrator. In Africa, it is common for lawyers to establish chambers which typically consists of no more than five lawyers in practice and also labeled as a general practice. Because of the way law firms in Africa operates and are organized they do not wield the same clout as global law firms from Europe and the United States.
In 2016, during the International Bar Association’s meeting in Washington D.C, there was a panel discussion on “How African lawyers and Bar Associations should respond to foreign lawyers seeking to perform professional services in their jurisdictions.” At this conference, the issue raised was several foreign law firms when providing services in African jurisdiction, restrict the opportunities to the African lawyers. Foreign law firms engage the African lawyers in preparing a memorandum on issues of local jurisdiction thus cutting off the opportunity for the African lawyers to gain any knowledge and or experience in the matter. To increase diversity and foster inclusivity in international arbitration is it pertinent that law firms from Europe and the United States reexamine their relationship with lawyers and law firms based in Africa when they have cases in their jurisdiction.
One way of improving the opportunities of African arbitration practitioners is for global law firms to implement a knowledge sharing and partnership approach when such law firms engage a local law firm in any of the African jurisdictions. Taking this approach opens the door for the African practitioners to showcase their knowledge and skills and for the global firms to be aware of practitioners with experience and interest in arbitration.