A number of international and local arbitration experts and enthusiasts converged on a hotel in Windhoek earlier this month to discuss “The Present and Future of Arbitration in Namibia”, which appears to be lagging behind when it comes to commercial arbitrations.
Donnovan Hanmer led the panel consisting of Advocate Herman Steyn, Dr Tapiwa Warikandwa, Prof. Won Kidane, Jackson Shaw Kern, and Dr Zewdineh Beyene Haile, who shared some of their experiences in the arbitration world and highlighted the challenges facing arbitration in Namibia from a local and international perspective.
The main challenge facing local arbitration is that the Arbitration Act, 42 of 1965, is outdated, weak and deficient, said Warikandwa, quoting a proposal for international arbitration in Namibia based on the UNCITRAL Model Law on International Commercial Arbitration, which he co-drafted last year.
Panellists said the second challenge is that there is a lack of political or leadership will to make arbitration a statutory choice of dispute resolution. The third challenge, they said, is the difficulty that exists in convincing people, commercial entities and legal practitioners to use arbitration more. And, finally, where arbitration is used, it is left to the arbitrators to choose which rules to use, and those arbitrators may not be competent enough to make appropriate awards, the panellists concluded.
The consensus in the room was that Namibia is still very far from having an ideal arbitration environment, even though it has great investment and economic potential thanks to recent oil discoveries and the green hydrogen project.
For Namibia to fully realise this investment and economic potential, said the panellists, it must improve its state of arbitration. Good steps in this direction, they said, would be to enact up to date legislation on commercial arbitration, ratify the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, and adopt clear international rules of commercial arbitration such as the Model Law on International Commercial Arbitration (MLICA)
They also pointed out the need to build arbitration practice in Namibia by introducing specific arbitration training and building institutional capacity. To this end, Steyn was invited to pitch the arbitration training program he has developed to the University of Namibia for possible collaboration.
On an international level, the panellists highlighted that African disputes are usually arbitrated in Europe or the United States because contracts often stipulate as much. However, this presents challenges of potential bias and cultural differences, so there’s a need to negotiate commercial contracts with clauses that allow for arbitration to take place locally.
The organisers have indicated that this discussion was just the beginning of more engagements on arbitration in order to change the state of arbitration in Namibia for the better.
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