Africa: Expanding Legal Horizons — key discussions and themes

03/10/15

On 28 September 2015 Brick Court Chambers, in association with The Times, hosted a conference on Africa: Expanding Legal Horizons.  Panels consisted of Members of Chambers, representatives from the African legal profession, anti-corruption experts and policymakers with expertise in Africa.  Admiral Sir George Zambellas KCB DSC ADC, First Sea Lord and Chief of UK Naval Staff, gave a keynote address.  The diversity of audience members – from the legal, insurance, banking, private equity, international political risk, and other disciplines – reflected the importance and significance of Africa in economic and legal terms.

After an inspiring welcome from Helen Davies QC, joint Head of Chambers, and Harry Matovu QC, the conference organiser, Session 1 examined ‘Public Law and Human Rights Issues’, focusing on the role of human rights in business and investment and the role of the International Criminal Court.  Richard Gordon QC chaired a panel consisting of Prof Robert McCorquodale (Director of the British Institute of International and Comparative Law and an Associate Member of Brick Court Chambers), Paul Bowen QC, Emily MacKenzie and Andrew McIntyre (Members of Brick Court Chambers) and international development expert, Dr Eva Thorne (Director of Policy and Research for Tony Blair Associates – Government Advisory).  Presentations covered the application of human rights to business through the United Nations Guiding Principles on Business and Human Rights, the interaction between bilateral investment treaties (BITs) and human rights norms, Africa and the International Criminal Court, and the positive experience in Liberia of oil extraction companies’ attitude to human rights under Production Sharing Agreements.

Session 2 was dedicated to ‘Market Regulation and Competition’.  Fergus Randolph QC chaired a panel consisting of Members of Chambers Jeremy Gauntlett SC and Robert O’Donoghue, Associate Member of Chambers Alastair Sutton, and José Costa Pereira, Adviser for Policy and Communications in the Africa Department of the European Union&rsqrsquo;s External Action Service.  Discussion focused on the importance and development of the rule of law in Africa and EU efforts to promote this, lessons to be learnt from the European experience of internal markets and integration, African merger regulation and regulators, and the extent and potential development of due process rights in regulatory and competition proceedings and appeals in African jurisdictions.

Session 3 examined ‘Sanctions’, on which Members of Chambers Maya Lester (who chaired the panel), Margaret Gray and Richard Blakeley spoke.  Discussion centred on the way in which sanctions typically affect African individuals and nations through asset freezes and travel bans; the complex interaction between sanctions and contractual obligations (particularly the application of force majeure clauses and the doctrine of frustration); and the attitude of the English and European courts to sanctions, with particular reference to obstacles to seeking judicial review of sanctions decisions.

Session 4 focused on ‘African Dispute Resolution in London’.  Helen Davies QC chaired a panel consisting of Members of Chambers Charles Hollander QC, Tom Adam QC and Edward Harrison.  Through the examination of significant recent cases before the English courts concerning African issues, in which Members of Chambers had been involved, central themes included the challenge of securing claims; procedural issues in litigation about African disputes in London; the increasing involvement of Chinese investors in African mining and other projects and the opportunity this presents for London to be a neutral venue for litigation or arbitration; and the effects of regime change and competing claims to represent a government in litigation involving national authorities.

Session 5 examined the ‘Enforcement of Arbitral Awards’ in Africa and arising out of African disputes.  Harry Matovu QC chaired a panel consisting of Joanne Box and Kyle Lawson from Brick Court Chambers, Babajide Ogundipe, a Partner at Sofunde, Osakwe, Ogundipe & Belgore (Lagos, Nigeria), and Aisha Abdallah, a Partner at Anjarwalla & Khanna (Nairobi, Kenya).  Presentations covered the breadth of the public policy exception to the obligation under the New York Convention for the recognition and enforcement of foreign arbitral awards, the current, restrictive approach of the English courts to challenges to domestic and foreign arbitral awards; a similarly pro-arbitration approach in the arbitration and enforcement regimes in Kenya, Tanzania, Uganda and Rwanda (notwithstanding the need for modernisation of Tanzanian arbitration law and the more expansive public policy exception to enforcement of awards in Kenya); and the experience of arbitration and the enforcement of awards in Nigeria (which demonstrated an increasingly pro-arbitration approach by the Nigerian courts).  There was also a paper on the enforcement of arbitral awards in OHADA Member States.

Session 6 focussed on ‘Corruption’.  Sir Sydney Kentridge QC chaired a high-profile panel consisting of Lord Hoffmann (former Law Lord and an Associate Member of Brick Court Chambers), Advocate Thuli Madonsela (the Public Protector of South Africa), and Robert Barrington (the Executive Director of Transparency International UK).  Sir Sydney paid tribute to Advocate Madonsela’s fight against corruption and her fearless work in holding the South African government to account at the highest levels.  In her address, Advocate Madonsela explained how “corruption derails development” and how administrative bodies and civil protest could be powerful tools against corruption, in addition to legislation and the courts.  Further topics covered included the power of social media in bringing about a “transparency revolution”; UN sustainable development goals that now address corruption explicitly; the effects of the Bribery Act 2010 in changing attitudes to corruption; and the possibility of international arbitration in London as a response to concerns about corruption in national courts elsewhere.  There was a cordial disagreement between panel members on the extent to which national governments and courts could or should take action on corruption emanating from foreign jurisdictions; and on the role that the United Kingdom — in particular the City — can play in the fight against corruption in other parts of the world.

The conference ended with a high-profile address on a non-legal topic.  Admiral Sir George Zambellas, the First Sea Lord, gave a  keynote address on ‘Naval Power in the 21^st Century: Supporting Global Business and International Law’.  Sir George discussed the Navy’s role in the enforcement of international law and its efforts, in coordination with other states, in the fight against piracy.  He also touched upon the destabilising effect of recent Chinese activity in the South China Sea and on naval cooperation with other states in the war against narcotics.  A central theme was the continuing need to ensure the rule of law at sea for our security and prosperity as well as that of others.  The First Sea Lord also emphasised the importance of adherence by the Armed Forces to the rule of law in operations, however difficult the circumstances.

Each Session was followed by a stimulating question and answer session, with audience members from the wide range of disciplines and jurisdictions represented sharing their own experiences and exploring key points in speakers’ presentations.  It was a stimulating day, and those who attended agreed that it had been “a fantastic and fascinating conference”, “interesting and thought provoking” with “a stunning rota of speakers”.

The papers for the conference are here.

David Heaton

Brick Court Chambers

2 October 2015