Documente Academic
Documente Profesional
Documente Cultură
Disputes Focus
Autumn 2013
One of the few bright spots on the gloomy global economic horizon.
George Soros
Contents
Africa Profile Disputes Focus
01
A life in law
02
04
Country profiles
08
Botswana 09
Armstrongs
Congo-Brazzaville 13
John W Ffooks & Co
Ghana 17
Bentsi-Enchill, Letsa & Ankomah
Guinea 21
John W Ffooks & Co
Kenya 25
Anjarwalla & Khanna
Morocco 29
Bennani & Associs LLP
Mozambique 33
Fernanda Lopes & Associados
Nigeria 37
Udo Udoma & Belo-Osagie
Tanzania 41
ADEPT Chambers
Uganda 45
MMAKS Advocates
Useful information
51
52
53
Partner contacts
54
Africas rise
Africa today
Collective GDP
USD1.7trillion
USD46
billion
USD0.8
trillion
FDI
Consumer spending
Africa tomorrow
USD2.6 trillion
USD150
billion?
USD1.5
trillion?
Consumer
spending
in 2020
FDI in 2015
01
A life in law
Interview with Ian Kirby, Judge President of the Court of Appeal, Botswana
02
03
04
05
ICSID arbitration
06
Non-ICSID arbitration
CONCLUSION
A combination of the substantive protections offered
by BITs and the procedural protection offered by
ICSID arbitration provides a powerful and compelling
package for prospective investors. The soft measures
should not, of course, be overlooked: establishing a
constructive dialogue with the government of the host
State from the outset is essential. However, investors
should take comfort from the additional protection
that will be available from a considered and structured
investment.
07
Country profiles
29
21
37
17
45
13
25
Botswana 09
41
Congo-Brazzaville 13
Ghana 17
33
Guinea 21
Kenya 25
Morocco 29
Mozambique 33
Nigeria 37
Tanzania 41
Uganda 45
08
09
Botswana
Key Facts
Armstrongs
Capital
Gaborone
Official languages
Setswana, English
Population
2 million
Currency
Pula (BWP)
Sipho Ziga
T +267 395 3481
E sipho@armstrongs.bw
W www.armstrongs.bw
oVERVIEW
The law of Botswana is based on civil law principles rooted in Roman Dutch
law inherited in the late 18th century from the Cape Colony, now part of
South Africa.
However, Botswanas judicial system was modelled on the English judicial
system as a result of its having been a British protectorate. The procedural
aspects of both civil and criminal law, together with the law of evidence, are
therefore based on English common law principles. The primary source of
procedural law in Botswana is statutory, namely, parliamentary legislation
and delegated legislation (such as in the form of the Rules of Court 2011).
09
Court structure
Court of Appeal
High Court
Magistrates
Court
Small Claims
Court
Industrial Court
Customary
Court of Appeal
Customary
Court
The Botswana court structure has retained a Customary Court also known as a kgotla as an informal forum to
settle smaller, less serious disputes between parties within a village or community. Disputes brought in that court
will be headed by the village Chief and be decided in accordance with the rules of equity. However, the parties to a
dispute have the unilateral right to request that the case is reallocated from the Customary Court to an appropriate
common law court with competent jurisdiction.
10
Arbitration
The Arbitration Act 1959 (AA 1959) governs arbitration in Botswana. The procedure for domestic arbitrations
is set out in the Rules for the Conduct of Arbitrations 2003, published by the Botswana Institute of Arbitrators.
Gaborone, the capital of Botswana, is the most popular national seat of arbitration. Some of the most popular
international seats of arbitration include London, Paris, New York and Geneva.
The enforcement of domestic awards is governed by Section 20, AA 1959. The successful party must apply to court
to enforce the award in the same manner as for a court judgment.
The recognition and enforcement of foreign arbitral awards is governed by the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards 1971 (REFAA 1971). Under the REFAA 1971, only those arbitral awards made
in countries that are both signatories to the REFAA 1971 and have reciprocal arrangements in their national courts
for the enforcement of Botswanan arbitral awards and that are considered commercial under Botswana law can
be enforced in Botswana. The word commercial is not defined in the REFAA 1971 and is therefore given its ordinary
meaning, ie a commercial award would include awards in respect of disputes relating to persons and businesses
engaged in commerce, merchandising, trade and sales.
11
12
Congo-Brazzaville
Key Facts
Capital
Brazzaville
Official language
French
Population
4.3 million
Currency
Central African franc (CFA)
John Ffooks
T +261 20 224 3247
E john@jwflegal.com
W www.jwflegal.com
oVERVIEW
The legal system in Congo-Brazzaville is based on the French civil law
system, with statutes contained in a series of codes. Court procedure is
governed by Law 51-83 of 21 April 1983 relating to the Congolese Code of
Civil, Commercial, Administrative and Financial Procedure.
13
Court structure
Supreme Court
(Brazzaville)
Court of Auditors
(Brazzaville)
Court
of First
Instance
Appellate Court
(Brazzaville)
County
Court
Commercial
Court
Appellate Court
(Pointe-Noire)
Labour
Court
Appellate Court
(Dolisie)
Administrative
Court
Military
Court
14
Arbitration
Congo-Brazzaville is a member of the Organisation pour lHarmonisation en Afrique du Droit des Affaires (OHADA).
The Common Court of Justice and Arbitration (CCJA) is the usual arbitration court of OHADA countries.
The Uniform Act on Arbitration 1999 (UAA 1999) governs arbitration law in OHADA countries and applies to
any arbitration governed by domestic or international law. The UAA 1999 prevails over local arbitral procedure,
including on the recognition and enforcement of arbitral awards made in other OHADA countries.
The recognition and enforcement of awards made in other OHADA countries are subject to the provisions of the
UAA 1999. Awards rendered pursuant to the CCJA rules require exequatur permission before they are enforced.
As Congo-Brazzaville is not a signatory to the 1958 Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (New York Convention), recognition of international arbitral awards from non-OHADA countries is
not automatic. Such awards may, however, be enforced in Congo-Brazzaville subject to an exequatur given by the
Court of First Instance (for claims up to CFA1million) or the County Court (for claims exceeding CFA1million).
Mediation
Parties can choose to mediate at any point during proceedings. This must be by agreement and cannot be ordered
by the court. The parties appoint a mediator who is independent and impartial, and who must not be a judge or an
arbitrator.
While there is currently no specific regulation governing mediation between private entities and individuals in
Congo-Brazzaville, mediations involving a public body and an individual are governed by Law No 9-98 dated 31
October 1998 and by Decree No 2002-252. In such cases, the mediator is appointed by the Council of Ministers by
decree for a term of three years, a term that can subsequently be renewed. For mediations involving public bodies,
the mediator cannot be a member of the government, Parliament, the Supreme Court, the Economic and Social
Council, the Superior Judicial Council or a local council.
Conciliation
Conciliation is a process available to individuals and corporates in which the parties use a conciliator (an
adjudicator), appointed by the parties and who meets with them separately, in an attempt to resolve their
differences. Parties may undertake conciliation of their own volition or on the initiative of the court.
15
16
Ghana
Key Facts
Bentsi-Enchill, Letsa
& Ankomah
Capital
Accra
Official language
English
Population
24.2 million
Currency
Cedi (GHS)
oVERVIEW
Ghana is a common law jurisdiction. Its legal system is based on the 1992
Constitution. The 1992 Constitution is also the supreme source of law in
Ghana and all other laws must be consistent with its provisions.
Other sources of law include: Acts of Parliament, subsidiary legislation
made under the powers conferred by either the 1992 Constitution
(known as constitutional instruments) or statute (known as legislative
instruments), common law, doctrines of equity and rules of customary law
(the rules of law which, by custom, are applicable to particular communities
in Ghana). As in England, the litigation system in Ghana is adversarial.
17
Court structure
Supreme Court
Court of Appeal
Regional Tribunals
High Court
Circuit Court
District Court
Juvenile Court
18
Arbitration
Arbitration is governed by the Alternative Dispute Resolution Act 2010 (Act 798) (ADRA2010), which provides that
all matters may be referred to arbitration except matters that relate to: (1) the national or public interest; (2) the
environment; (3) the enforcement and interpretation of the 1992 Constitution; or (4) any other matter that by law
cannot be settled by an alternative dispute resolution method (eg a criminal prosecution).
Under the ADRA 2010, arbitration may be initiated by a party to a valid arbitration agreement or by an order of
a court if the court finds that a valid arbitration agreement exists or if it thinks the dispute can be arbitrated and
the parties agree to arbitration. The ADRA 2010 largely reflects the UNCITRAL Model Law, although it is more
comprehensive. Certain provisions of the ADRA 2010 reflect those contained in the English Arbitration Act 1996.
Ghana has an Alternative Dispute Resolution Centre, which serves as the main national arbitration institute. It also
has private arbitration bodies such as the Ghana Arbitration Centre as well as arbitration bodies operating within
registered associations such as the Association of Certified Mediators and Arbitrators (GHACMA). In addition,
there is the National Labour Commission, a statutory body set up to resolve industrial and labour disputes with
arbitration as one of its dispute resolution mechanisms.
The arbitration centres most commonly specified in agreements governed by Ghanaian law, where arbitration is
selected as the appropriate forum, include the London Court of International Arbitration (LCIA), the Permanent
Court of Arbitration (PCA) and the International Centre for Settlement of Investment Disputes (ICSID).
Both domestic and foreign arbitration awards may be enforced, by leave of the High Court, in the same manner as
a court judgment. Foreign awards must have been given in a country with which Ghana has a reciprocal agreement
or under any international convention on arbitration to which Ghana is a party (Ghana is party to the 1958
Convention on the Recognition and Enforcement of Foreign Arbitral Awards). The High Court will only grant leave if
there is no appeal pending against the award in any court under the law applicable to the arbitration. Certain other
limited requirements must be met: for example, the party must have been properly represented and the award
must deal with the issues submitted to arbitration. The courts decision on enforcement is, however, subject to
appeal by the normal court appeal process.
Mediation
Under the ADRA 2010, a party to any agreement may, with the consent of the other party, submit any dispute
arising out of that agreement to mediation. The Ghanaian court may also refer an action pending before it to
mediation if it is of the view that the action may be resolved best through mediation. The court can make that
referral at any stage of the proceedings. For litigation commenced by writs in the Commercial Division of the High
Court, there is a mandatory 30-day mediation by a judge when pleadings close. Only where the mediation fails will
the judge set down the issues for trial. The matter is then tried by another judge.
19
Customary arbitration
The ADRA 2010 also provides for customary arbitration. Customary arbitration commences when a party refers
the dispute to a person jointly appointed by the parties who is asked to assist in resolving the dispute. Payment
of the arbitration fee or token to the arbitrator constitutes consent to submit to customary arbitration and the
appointment of the arbitrator. The arbitrator is not obliged to apply any legal rules of procedure, but must apply
the rules of natural justice and fairness.
Industrial and labour disputes are mostly settled either by or through the National Labour Commission, which
employs common alternative dispute resolution methods such as negotiation, mediation and arbitration. Most
petitioners to the National Labour Commission are employees who are unable to meet the cost of litigation.
20
Guinea
Key Facts
Capital
Conakry
Official language
French
Population
10.1 million
Currency
Guinean franc (GNF)
John Ffooks
T +261 20 224 3247
E john@jwflegal.com
W www.jwflegal.com
oVERVIEW
The legal system in Guinea is based on the French civil law system and
customary law. Customary law applies in circumstances where there is
an absence of provision in statutory law, especially in cases concerning
personal status (ie marriage, succession and womens rights).
Court procedure is governed by Decree D/98/N100/PRG/SGG, dated 16
June 1988 on the civil, economic and administrative procedure code.
21
Court structure
Supreme Court
Court of Appeal
Competent to enforce foreign judgments
Appellate Court
(Conakry)
Appellate Court
(Kankan)
In Prfectures where no Court of First Instance
competent to hear claims not exceeding GNF 50 million
22
Arbitration
Guinea is a member of the Organisation pour lHarmonisation en Afrique du Droit des Affaires (OHADA). The
Common Court of Justice and Arbitration (CCJA) is the usual arbitration court of OHADA countries. The Uniform
Act on Arbitration 1999 (UAA 1999) governs arbitration in OHADA countries and prevails over local arbitral
procedure as well as in the recognition and enforcement of awards.
Arbitral awards rendered pursuant to the provisions of the CCJA Arbitration Rules have the status of res judicata in
Guinea. However, they still require an exequatur before they can be enforced. Non-OHADA international arbitral
awards may be enforced in Guinea subject to an exequatur given by the court. This means that the award can be
challenged through the local courts by third party proceedings or annulment action. However, the award cannot be
subject to opposition, appeal or appeal in cassation.
Mediation
Parties can choose to mediate at any point during proceedings. This must be by consent and cannot be ordered by
the court. The parties appoint a mediator who is independent and impartial, and who must not be a judge or an
arbitrator.
There is currently no specific regulation governing mediation between private entities and individuals in Guinea.
However, mediations involving a public body and an individual are governed by organic law (that is, laws voted
on by Parliament that update and amend the Constitution). The mediator is appointed by the President of Guinea
in a Decree of the Council of Ministers for a term of seven years, a term that is not subsequently renewable. The
mediator is a high-ranking official who has served in public office for at least 30 years.
Conciliation
This is a process available to individuals and corporates where a conciliator, who meets with each party separately,
is appointed to help the parties settle their dispute. Conciliation is not permitted where the dispute is between a
public body and an individual. The parties can choose to use conciliation to try to resolve their dispute or the court
can refer parties to conciliation.
23
24
Kenya
Key Facts
Capital
Nairobi
Official languages
Swahili, English
Population
43.5 million
Currency
Kenyan shilling (KES)
Aisha Abdallah
T +254 (0)703 032 000
E aa@africalegalnetwork.com
W www.africalegalnetwork.com
oVERVIEW
The Kenyan legal system is based on English common law. English
statutes and decisions up to and including 12 August 1897, when Kenya
was declared a British Protectorate, are binding on the Kenyan courts and
cannot be challenged. English law judgments delivered after 12 August
1897 are merely persuasive, although the trend has been to follow English
jurisprudence unless local circumstances require departure from this, for
example in land law.
The principal sources of law in Kenya are the Constitution, statutes and case
law. The Constitution of Kenya 2010 (2010 Constitution) is the supreme
source of law (ie it is binding on all persons and overrides any other
contrary legal provision or rule) and customary law is the lowest source
of authority (ie it provides guidance in civil cases provided that it is not
inconsistent with any written law). As in England, the litigation system in
Kenya is adversarial and each court has its own procedural rules.
25
Court structure
Supreme Court
Appellate jurisdiction in respect of decisions from the Court of Appeal concerning
the Constitution or matters of general public importance.
Exclusive original jurisdiction to hear and determine disputes relating to presidential elections.
May give an advisory opinion on any matter concerning any Kenyan countys legislation at the
request of the national government, any State body, or any county government.
Court of Appeal
Environmental
and Land Court
High Court
Industrial Court
Courts Martial
Other courts/tribunals
established by Act of
Parliament
26
There are no statutory provisions for the enforcement of foreign judgments in the absence of reciprocity. This may
mean that parties have to commence fresh proceedings in Kenya to enforce a judgment.
Arbitration
The Arbitration Act 1995, based on the UNCITRAL Model Law 1985, provides the framework for domestic and
international arbitration, and local arbitral case law follows English case law on issues such as the availability of
interim relief.
The most popular arbitral institution is the Chartered Institute of Arbitrators (Kenya Chapter), which has its own
rules and members. Additionally, the recently enacted Nairobi Centre for International Arbitration Act 2013
establishes the new Nairobi Centre for International Arbitration. The most popular seats of arbitration are Nairobi,
London and Johannesburg. Nairobi is often selected as an arbitral seat by East African parties, even where neither
party to the dispute is a Kenyan body.
Domestic arbitration awards are enforceable upon registration of the final award at the High Court. Foreign awards
are enforceable pursuant to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(New York Convention), subject to the reciprocity reservation, ie that the award was made in another contracting
State to the New York Convention.
Mediation
Mediation is formally recognised, although not regulated, by the CPA 2010: the High Court has power, either on its
own motion or at the request of parties, to refer disputes to mediation or other forms of ADR. There are also draft
Court Mandated Mediation Rules, although these have not been expressly incorporated into the CPA 2010.
Conciliation
In employment law, the court can also refer trade disputes to conciliation. Conciliation is not formally recognised in
general legislation but, within employment law, this practice is well established.
27
28
Morocco
Key Facts
Capital
Rabat
Official languages
Arabic and Berber
Population
32.8 million
Currency
Dirham (MAD)
Mehdi M Bennani
T +212 522 95 96 00
E mbennani@bennaniassocies.com
W www.bennaniassocies.com
oVERVIEW
The Moroccan legal system is based on a civil law regime that includes a
complete system of rules, largely codified, that are applied and interpreted
by judges. Case law has an interpretative and/or complementary role with
regard to legislation.
Court procedure is governed by Dahir (Royal Decree) No 1-74-447, which
approves the text of the Moroccan Code of Civil Procedure 1974 (CCP 1974),
as amended by Dahir No 1-11-149, BO No 5978, dated 15 September 2011.
29
Court structure
Supreme Court
Civil Chamber
Personal Status
and Succession
Chamber
(Family and probate)
Social Chamber
(Employment)
Criminal Chamber
Appeal Court
Proximity
Justice
(Civil
litigation not
exceeding
MAD 5,000)
Commercial
Chamber
Family
Chamber
Administrative
Chamber
Commercial
Appeal Court
Administrative
Appeal Court
Commercial Court
Administrative
Court
Criminal Chamber
Civil
Chamber
Commercial
Chamber
Social
Chamber
Criminal
Chamber
(Employment)
30
Arbitration
Arbitration in Morocco is governed by Law No 08-05, dated 30 November 2007, which amended Articles 306-327,
CCP 1974. It takes into consideration the various international organisations regulations and recommendations (eg
UNCITRAL, ICSID, etc), but allows parties to adapt the CCP 1974 to suit their dispute. It is preferable not to present
a dispute before a court and an arbitral tribunal at the same time. Disputes relating to personal rights and capacity,
decisions of public bodies and matters of tax law cannot be referred to arbitration.
Arbitration may be in the form of an ad hoc arbitration submitted to one or more arbitrators or to an institutional
arbitration, in which case the arbitration will be governed by the rules of the chosen institution. The most popular
arbitral institution in Morocco is the Moroccan Court of Arbitration. The most popular seat is Casablanca.
A domestic arbitral award must be recognised by order of the President of the Court in the territorial jurisdiction in
which the arbitral award was rendered before it can be enforced.
As regards the enforcement of international arbitral awards, Morocco has ratified the 1958 Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). To establish the existence of the
international award, the prevailing party must produce to the Moroccan judge the original (or true copy) arbitration
agreement or arbitration clause, and the award. If these are not in Arabic, they must be translated into Arabic by
a sworn translator approved by the Moroccan courts. The judge who receives the request for enforcement of the
award shall not address the substance or merits of the dispute, but only ensure that the award is not contrary to
national or international public policy under the New York Convention.
31
32
Mozambique
Key Facts
Capital
Maputo
Official languages
Portuguese, Makua-Lomwe,
Swahili, other indigenous
languages
Population
24.5 million
Fernanda Lopes
T +258 21 496 974
E fernanda.lopes@fernandalopes.com
W www.africalegalnetwork.com
Currency
Metical (MZN)
Overview
The civil law system adopted in Mozambique is derived from Roman law
and is based on the legislation published in the Official Gazette. Case law is
used to clarify any ambiguities on the face of the law or arising in relation to
the application of the law to the facts of a particular case. Court procedure
is governed by the Code of Civil Procedure 1961 (CPC 1961).
33
Court structure
Supreme Court
Appeal Courts
District
Courts
Provincial
Courts
Criminal
Courts
Family
Courts
Administrative
Courts
Tax
Courts
Arbitration
Disputes, other than those relating to excluded matters (see below), may be submitted to arbitration in accordance
with Articles 1 and 5 of the Law on Arbitration, Conciliation and Mediation, Law No 11/99, dated 8 July 1999
(LACM1999), which governs arbitrations in Mozambique (Article 68, LACM 1999) and is modelled on UNCITRAL.
The parties are free to establish the arbitration process and to appoint the arbitrators. Alternatively, the rules of
the Mozambique Centre for Arbitration and Conciliation (CACM) will apply. Since the LACM 1999 came in force,
arbitration has become popular and is seen as comparable to litigation as a mechanism for resolving disputes.
34
Matters excluded from arbitration include: (1) disputes for which the court has exclusive jurisdiction, eg disputes
relating to leasehold property, including the termination of leases; (2) disputes subject to a specialist arbitration
regime that has not been repealed by the LACM 1999, eg arbitration on public administration matters; and
(3)disputes relating to inalienable rights (Article 5(2), LACM 1999), eg criminal, family or tax matters.
Domestic arbitral awards are binding and enforceable in the same way as court judgments (Articles 43 and 49,
LACM 1999). As regards the enforcement of foreign arbitral awards, these are enforceable with the recognition of
the Supreme Court. However, this will depend on the existence of reciprocal arrangements between Mozambique
and the State in which the arbitral award was made. Although party to the 1958 Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (New York Convention), Mozambique has reserved the right to apply
the New York Convention on the basis of reciprocity. If the arbitral seat is outside Mozambique, the award will not
be enforceable as a court decision made in Mozambique territory, since local arbitration law is only applicable to
arbitrations held in Mozambique territory (Article 68, LACM 1999).
Mediation
Mediation is governed by Article 60/2, LACM 1999. Mediation cannot be ordered by the court, but at the start
of a case the judge will ask the parties if they are open to mediation. If they agree, the court proceedings will be
suspended pending mediation. The mediator is appointed by the President of the CACM. If the parties do not
believe their dispute can be resolved through mediation, the court proceedings will continue.
If mediation is successful, the parties submit the agreement to the judge who will then accept it and conclude the
court proceedings. An agreement reached through mediation is binding. If, after a pre-agreed timeframe, the judge
has not received notification of an agreement, he or she will assume that mediation has been unsuccessful and the
court proceedings will resume.
Mediation, conducted by the CACM, is popular in the resolution of labour disputes.
Conciliation
Conciliation is governed by Article 60/3, LACM 1999 and involves the parties negotiating through communication
with each other and a third party. The conciliator, appointed by the President of the CACM, chooses the location
and timing for the discussions. A lawyer is not required, although the parties may choose to instruct one if they so
wish. If conciliation is successful, the parties sign an agreement, that is then binding.
35
36
Nigeria
Key Facts
Capital
Abuja
Official languages
English, Yoruba, Ibo, Hausa
Population
166.6 million
Currency
Naira (NGN)
Uzoma Azikiwe
T +234 1 462 2307 10
E uzoma.azikiwe@uubo.org
W www.uubo.org
Overview
Nigerias legal regime is a mixed legal system consisting of common
and customary law that co-exist in the manner of two rivers that flow
separately without mixing.
Court procedure is governed by various civil procedure rules, including
the High Court of Lagos State (Civil Procedure) Rules 2012, the Federal
High Court (Civil Procedure) Rules 2009, and the National Industrial
Court Rules 2007.
37
Court structure
Supreme Court
Court of Appeal
Industrial Court
High Court
Magistrates
Court
Other
Tribunals
Customary
Court of Appeal
Sharia
Court of Appeal
Customary
Court
Sharia/Alkali Court
38
Arbitration
The statutes that regulate arbitration in Nigeria include the Arbitration and Conciliation Act, Cap A18, Laws of
the Federation of Nigeria 2004 (ACA 2004), and the Arbitration Law of Lagos State (Law No 10 of 2009 of Lagos
State). Under Section 7(1), ACA 2004, the parties can specify the procedure for appointing arbitrators; for example,
the parties can mandate an institution to appoint the arbitrators or agree that the arbitration be conducted under
the rules of a chosen institution.
The most popular recognised arbitral institutions in Nigeria are the Chartered Institute of Arbitrators UK (Nigeria
Branch) and the Regional Centre for International Commercial Arbitration, Lagos. The most popular international
arbitral institutions are the International Chamber of Commerce Court of Arbitration (ICC), the London Court of
International Arbitration (LCIA) and the Regional Centre for International Commercial Arbitration (RCICA). The
most popular arbitral seat is Lagos.
Nigeria is a signatory to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(New York Convention), which is incorporated into the ACA by Section 54(1). For domestic arbitral awards and
awards from a New York Convention country, the party applying to enforce an award applies in writing to the High
Court and is required to file a duly authenticated original award, or a certified copy of it, together with the original
arbitration agreement (Section 51, ACA 2004).
Mediation
Mediation is governed by either the contract between the parties or the relevant civil procedure rules. For example,
under Order 3 (Rule 11) and Order 25 (Rule 6) of the Lagos State High Court (Civil Procedure) Rules 2012, the court
is empowered to refer appropriate cases to the Lagos Multi-Door Court House (established in 2002 as a publicprivate partnership between the High Court, Lagos State and the Negotiation and Conflict Management Group) or
any other appropriate ADR institution for resolution.
Labour disputes can be referred to mediation for resolution under the Trade Disputes Act, Cap T8, Laws of the
Federation of Nigeria 2004.
Conciliation
Conciliation is governed by Section 55, ACA 2004. Section 55 enables parties to an international commercial
agreement to agree to settle their disputes by conciliation under the conciliation rules in the Third Schedule, ACA
2004.
39
40
Tanzania
Key Facts
ADEPT Chambers
Capital
Dodoma
Official languages
English, Swahili
Population
44.9 million
Currency
Tanzanian shilling (TZS)
Frederick Ringo
T +255 22 212 0954/6
E frederick.ringo@adeptchambers.com
W www.adeptchambers.com
Overview
The United Republic of Tanzania consists of the Tanzania mainland and
Zanzibar. The legal system is based on the English common law system,
although the law is a combination of English, East African and Islamic laws.
The Constitution of the United Republic of Tanzania 1977 is the primary
source of Tanzanian law.
Court procedure is governed by several pieces of legislation, including the
Civil Procedure Act (Cap 33) 1967, the Criminal Procedure Act (Cap 20)
1985, the Judicature and Application of Laws Act (Cap 358) 1920 and the
Magistrates Courts Act (Cap 11) 1984, all of which were amended in 2002.
41
Court structure
Court of Appeal
TANGANYIKA
ZANZIBAR
High Court
High Court
Commercial
Court
Labour Court
Land Court
Magistrates Courts
Primary Courts
Kadhis Court*
District Courts
Military Court
42
Arbitration
The Arbitration Act 1971 (AA 1971) governs enforcement of domestic and international arbitral awards. Schedule2,
AA 1971 applies the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards to which
Tanzania became a signatory in 1965. The AA 1971 governs enforcement, rather than arbitral procedure, and
permits parties to select the rules (eg ICC, LCIA etc) that best suit their circumstances and disputes. There is also a
proposed draft Tanganyika Law Society Bill to amend the AA 1971. This has been with the Attorney General since
2006 and the details are not yet in the public domain. The impact on domestic and international parties therefore
remains to be seen.
The ICC, LCIA, Swiss Arbitration Association and ICSID are the most popular choices of arbitral institutions and
rules, although parties are free to agree to use local arbitral rules. Traditionally, London, Paris and Geneva have been
the most popular seats of arbitration, but increasingly arbitrations are taking place in local African jurisdictions due
to the increasing cost of, and visa difficulties that arise in relation to, European arbitrations.
Domestic and foreign arbitral awards are enforced by filing an application in the High Court and giving notice of the
application to the other party.
Court-annexed mediation
This is where a neutral third party facilitates negotiations between the parties to help them settle. The mediation
session is informal and confidential, which means discussions between the parties cannot subsequently be referred
to in court. Court-annexed mediation is compulsory in all litigation proceedings. After pleadings have been filed
in court, the court orders the parties to mediate. If mediation is not successful, then the proceedings will resume.
However, if an agreement is reached, the settlement agreement is filed at court and becomes enforceable under
the Civil Procedure Code (Cap 33, Order VIIIA).
Expert determination
Expert determination is only available for construction and insurance disputes. It is not commonly used overall and
the decisions are not enforceable.
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44
Uganda
Key Facts
MMAKS Advocates
Capital
Kampala
Official languages
English, Luganda
Population
35.6 million
Currency
Ugandan shilling (UGX)
Overview
The Ugandan legal system is based on the Constitution of 8 October 1995
(1995Constitution), statute, rules of common law, equity and customary
law. Customary law is derived from the customs and cultures of the
various tribes in Uganda (some customs are particular to one tribe but not
another) and is recognised and enforceable so long as it is consistent with
the 1995 Constitution and is not contrary to equity and good conscience.
Court procedure is governed by the Civil Procedure Rules SI 71-1 1964, as
amended in 1994 and 1998.
45
Court structure
Supreme Court
Court of Appeal
High Court
46
issues a permission order, specifying the period within which an application to set aside the judgment can be
made, on the judgment debtor. If the judgment debtor does not contest the order, the judgment is registered and
executed as a judgment of the High Court of Uganda.
The law does not provide for the enforcement of foreign judgments where that judgment is issued by a State that
does not have reciprocal arrangements with Uganda. In these cases, enforcement proceedings relying on a foreign
judgment must be begun in Uganda.
Arbitration
Domestic and international arbitrations are governed by the Ugandan Arbitration and Conciliation Act 2000 (ACA
2000), which is based on a modified version of the UNCITRAL Model Law 1985 (UNCITRAL Model). The UNCITRAL
rules are the most popular of the recognised arbitral institutions, perhaps because the ACA 2000 is based on the
UNCITRAL Model. For reasons of cost, Ugandan parties tend to prefer to hold arbitrations in Kampala.
Domestic and international arbitral awards are binding and the Magistrates and High Courts have the power to
enforce awards following written application by the parties or if the time period for an application to set aside the
award has elapsed (Sections 35-36, ACA 2000). The award is construed as an order of the court and the ordinary
methods of execution apply. There are no grounds listed in the ACA 2000 for refusing enforcement of an award
and, when the time for making an application to set aside has expired or an application has been made and has
been refused, an award will be enforced by the court in the same manner as a judgment of the court.
Uganda is party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York Convention) and Part III, ACA 2000 deals with enforcing New York Convention awards. New
York Convention awards that would be enforceable under the ACA 2000 are treated as binding for all purposes
on the persons between whom they are made and can be relied upon by those persons by way of defence, setoff, or otherwise in legal proceedings in Uganda (Section 41, ACA 2000). New York Convention awards must be
recognised and enforced in accordance with Section 35, ACA 2000. The grounds for refusal of recognition and
enforcement in Article V of the New York Convention are not replicated in the ACA 2000, but can nonetheless be
relied upon by a party to resist recognition and enforcement of a New York Convention award.
Conciliation
Sections 48-66, ACA 2000 recognise conciliation, which is akin to mediation, as a form of alternative dispute
resolution. One party must invite the other, in writing, to engage in conciliation and conciliation starts if and when
the second party accepts that invitation, also in writing, and within 21 days of the initial invitation. The parties
select and appoint a conciliator (there is usually only one conciliator but may be up to three). The parties each
submit a written statement of the dispute for the conciliator(s) to consider, copies of which will also be sent to the
other party. Communications can be in writing or made orally, as requested by the conciliator, taking into account
47
the parties preferences and the nature of the dispute, and will be conducted at a location and within a timeframe
determined by the conciliator.
The process is entirely confidential and the conciliator is guided by the principles of fairness and justice, giving
consideration to, among other things, the rights and obligations of the parties, trade custom and the circumstances
surrounding the dispute (including any previous business dealings between the parties). The conciliator and/or the
parties can make recommendations for settlement of the dispute at any stage but the conciliator has no power to
make awards or issue orders or directives. If settlement is reached, the conciliator puts the agreement in writing
and, once signed by the parties, it is final and binding.
Court-ordered determination
The Judicature Act (Chapter 13) 1996 (JA 1996) provides for court-ordered determination, either of the courts own
motion or with the parties consent.
Section 26, JA 1996 empowers the court in appropriate cases, but not in criminal matters, to refer an issue to an
official or special referee for investigation. The report of such official or special referee may then be wholly or partly
adopted by the court and, if so adopted, enforced as a judgment or order of the court.
Section 27, JA 1996 empowers the court, other than in criminal proceedings, to refer matters to a referee or
arbitrator who will be deemed for these purposes to be an officer of the court and whose decision can then be
adopted as a judgment or order of the court. However, in this instance, the parties consent is required. In addition,
the issue must be one that would either: (1) ordinarily require prolonged examination of documents or involve a
forensic or legal investigation that could not conveniently be conducted by the court; or (2) be wholly or partly an
accounting dispute.
Mandatory mediation
The Judicature (Commercial Court Division) (Mediation) Rules SI 55 2007 provide for mandatory mediation before
litigation in the Commercial Court Division of the High Court, regardless of the subject matter or nature of the
dispute. Mediation is either facilitative in which case it is conducted by the Registrar of the Court or a courtaccredited mediator (who is usually an advocate) or evaluative in which case it is conducted by a judge of the
Commercial Court (who would not sit in any subsequent litigation). The parties are free to choose which of the two
forms of mediation they prefer. In other divisions of the High Court, mediation is not mandatory and a party can
choose not to go through the process.
48
49
Contributing firms
50
Useful information
Contributing jurisdictions in bold
DR Congo
Mauritius
South Africa
Angola
Egypt
Morocco
Swaziland
Benin
Gambia
Mozambique
Tanzania
Burundi
Ghana
Nigeria
Tunisia
Cameroon
Kenya
Senegal
Uganda
Cte dIvoire
Lesotho
Sierra Leone
Zimbabwe
Ghana
Mauritius
South Africa
Botswana
Guinea
Morocco
Tanzania
Burkina Faso
Kenya
Mozambique
Tunisia
Cameroon
Lesotho
Niger
Uganda
Liberia
Nigeria
Zambia
Cte dIvoire
Madagascar
Rwanda
Zimbabwe
Djibouti
Mali
Gabon
Mauritania
Senegal
DR Congo
Malawi
Seychelles
Benin
Egypt
Mali
Sierra Leone
Botswana
Ethiopia
Mauritania
Somalia
Burkina Faso
Gabon
Mauritius
South Africa
Burundi
Gambia
Morocco
Sudan
Cameroon
Ghana
Mozambique
Swaziland
Cape Verde
Guinea
Namibia
Tanzania
Guinea-Bissau
Niger
Togo
Chad
Kenya
Nigeria
Tunisia
Comoros
Lesotho
Rwanda
Uganda
Congo-Brazzaville
Liberia
Zambia
Cte dIvoire
Madagascar
Senegal
Zimbabwe
51
52
53
Partner contacts
Nigel Boardman
Mergers and Acquisitions
T +44 (0)20 7090 3418
E nigel.boardman@slaughterandmay.com
CRAIG CLEAVER
Corporate and Commercial
T +44 (0)20 7090 3013
E craig.cleaver@slaughterandmay.com
54
Steven Galbraith
Infrastructure, Energy and Natural Resources
T +44 (0)20 7090 3099
E steven.galbraith@slaughterandmay.com
JOHN PAPANICHOLA
Mergers and Acquisitions
T +44 (0)20 7090 3031
E john.papanichola@slaughterandmay.com
55
ANDY RYDE
Corporate and Commercial
T +44 (0)20 7090 3480
E andy.ryde@slaughterandmay.com
Richard Smith
Corporate and Commercial
T +44 (0)20 7090 3386
E richard.smith@slaughterandmay.com
56
James Stacey
Dispute Resolution
T +44 (0)20 7090 4124
E james.stacey@slaughterandmay.com
David moved to our Hong Kong office in the summer of 2011, before
which he was based in our London office. David is admitted as a
solicitor in England and Wales and Hong Kong.
Davids principal areas of practice include M&A (of both public and
private companies), general corporate finance and equity capital
markets. He spent two years on secondment to The Panel on
Takeovers and Mergers (London) from January 2006 to January 2008,
as Secretary regulating some of the most high profile public M&A
transactions to have taken place in recent years.
DAVID WATKINS
Mergers and Acquisitions, Hong Kong
T +852 2901 7278
E david.watkins@slaughterandmay.com
57
London
One Bunhill Row
London EC1Y 8YY
United Kingdom
Brussels
Square de Mees 40
1000 Brussels
Belgium
Hong Kong
47th Floor, Jardine House
One Connaught Place
Central
Hong Kong
T +852 2521 0551
F +852 2845 2125
Beijing
2903/2905 China World Office 2
No.1 Jianguomenwai Avenue
Beijing 100004
Peoples Republic of China
T +86 10 5965 0600
F +86 10 5965 0650
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