Hostname: page-component-7b7567c8c-fvjsw Total loading time: 0 Render date: 2026-11-12T09:19:46.709Z Has data issue: false hasContentIssue false
  • English
  • Français

Arbitration as the Best Option for the Settlement of China-African Trade and Investment Disputes

Published online by Cambridge University Press:  05 April 2013

Weidong Zhu
Rights & Permissions [Opens in a new window]

Abstract

The effective resolution of trade disputes related to Sino-African investments will have a major impact on the development of trade and investment between China and African states. Arbitration is considered the best option for the settlement of disputes between China and African states as it offers unique benefits and is both suited to the current environment in African countries and accepted by Chinese and Africans. To make full use of this dispute settlement approach, the Chinese government should take active measures to promote the knowledge of arbitral legal systems in Africa among the Chinese businesses investing or trading locally. Beijing should encourage them to settle disputes with their African counterparts through arbitration. It is also important for Chinese companies to learn about arbitration laws in African states, and choose a favourable arbitral institution and proper arbitration seat.

Information

Type
Research Article
Information
Journal of African Law , Volume 57 , Issue 1 , April 2013, pp. 149 - 163
Copyright
Copyright © School of Oriental and African Studies 2013

INTRODUCTION

Trade and investment between China and African states has increased enormously in recent years, with a commensurate increase in trade and investment disputes. Whether these disputes can be settled effectively and efficiently will have a great impact on the further development of China-African trade and investment. In this article, the author argues that arbitration is the best option for the settlement of such disputes, based on his previous research on the subject,Footnote 1 the reality in African states and the attitudes on both sides towards the settlement of such disputes. This article concludes with some advice to Chinese businesses intending to arbitrate their disputes in Africa and proposes some steps to improve arbitration as a means to settle China-African trade and investment disputes.

THE ADVANTAGES OF ARBITRATION IN SETTLING CHINA-AFRICAN TRADE AND INVESTMENT DISPUTES

With the majority of bilateral trade and investment originating from China into Africa, most disputes occur in Africa. Chinese parties are usually unwilling or hesitant to litigate in African courts due to the prevailing perceptions among them of corruption and low efficiency, and difficulty in enforcing judgments made by African courts,Footnote 2 although this is not necessarily true in all cases. Furthermore, the parties' lack of knowledge about litigation processes in Africa due to the diversified legal systems in the region also results in their hesitation to settle disputes in African courts. Thus, when a dispute arises, the Chinese enterprise or businessman often either gives up his business or market in Africa or seeks to settle the dispute through unjustifiable means, for example by bribing local officials. In the long run neither is desirable, as both will have a negative effect on the development of China-African trade and investment.

Considering the worries about the justice system among economic operators on both sides, arbitration would be a preferable option. Arbitration is a non-litigious dispute settlement mechanism whereby the parties submit their dispute to one or more persons sitting as arbitrator(s), who make a binding decision. Compared with court litigation, arbitration emphasizes respect for the parties' autonomy and the parties enjoy significant freedom in the arbitral process. For example, the parties can choose the arbitrator, the seat of arbitration, the procedural rules and the language of arbitration.Footnote 3

Another paramount advantage of arbitration over litigation is that arbitral awards will be more easily and readily recognized and enforced than court judgments. There is no global convention on the recognition and enforcement of foreign judgments and, when dealing with such a matter, a reciprocal or bilateral judicial assistance treaty is often required. However, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) makes the recognition of foreign arbitral awards and their enforcement in member states swift and convenient. To date, there are only four bilateral civil and commercial judicial assistance treaties between China and African states (being with Egypt,Footnote 4 Morocco,Footnote 5 TunisiaFootnote 6 and Algeria),Footnote 7 so the recognition and enforcement of judgments made by African courts is to some extent limited. However, if the disputes are settled through arbitration, the arbitral awards will be easily recognized and enforced, because China and approximately 30 African countries are member states of the New York Convention.Footnote 8

Of course, arbitration also has many other advantages: it is cheaper and faster; and it maintains friendly relationships between parties. The advantages in speed and cost, according to an African scholar, are “very relevant in an African setting” where delay and congestion are common in the judicial process not only because of heavy workloads, but also the anachronistic colonial relics from which the court system suffers.Footnote 9 By using arbitration the parties may avoid the vehemence and mistrust that normally follow a contentious litigation. For Chinese enterprises or business people who want to maintain business relationships with their disputing African counterparts, arbitration should be the best option.

FACILITIES FAVOURABLE TO ARBITRATION IN AFRICA

Arbitral legal instruments in Africa

In most African countries, arbitration was not merely transplanted from the west; arbitration has a long tradition in Africa as a method of settling disputes.Footnote 10 Since the 1990s, many African countries have re-enacted their arbitration laws based on more advanced legal instruments, especially the 1985 UNCITRAL Model Law on International Commercial Arbitration (the Model Law). Its objective was to attract foreign investment, expand trade and enhance investors' confidence. To date, ten African countries have adopted the Model Law: Egypt, Kenya, Madagascar, Mauritius, Nigeria, Rwanda, Tunisia, Uganda, Zambia and Zimbabwe.Footnote 11 It is submitted that “these states have achieved varying degrees of success in attempting to modernize their arbitration practice and limit court intervention”.Footnote 12

Arbitration in some African countries with a common tradition or language is regulated by a treaty or uniform law that they concluded or adopted. For example, seven Arab countries in AsiaFootnote 13 and seven Arab countries in AfricaFootnote 14 signed the Arab Convention on Commercial Arbitration (the Amman Convention) in Amman in April 1987, which came into force in June 1992. According to article 2 of this convention, it applies to commercial disputes between natural or legal persons of any nationality, linked by commercial transactions with one of the contracting states or one of their nationals, or which have their main headquarters in one of these states. On 17 October 1993, 14 African countries signed the Treaty on the Harmonization of Commercial Laws in Africa (the OHADA Treaty) to create the Organisation pour l'Harmonisation en Afrique du Droit des Affaires [Organization for the Harmonization of Commercial Laws in Africa] (OHADA).Footnote 15 Most of the member states are francophone countriesFootnote 16 and share the civil law tradition.Footnote 17 This organization provides two sets of arbitration systems for its member states: one set under the OHADA Treaty and the other under the Uniform Act on Arbitration.Footnote 18

In the case of an investment dispute, most foreign investors are unwilling to submit a dispute with the host state to the local court, because they fear that the local court will make an unfair judgment under possible political intervention from the host state. They prefer to settle such disputes through a neutral arbitral institution. The prevailing perception among Chinese investors about corruption in African courts will intensify such a fear. Most African countries acceded to the 1965 Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the Washington Convention) to assure foreign investors that their investments will be protected through arbitration under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID).Footnote 19 Furthermore, 30 African countries have ratified the New York Convention to guarantee the recognition and enforcement of ordinary international commercial arbitral awards. These efforts provide effective mechanisms for investment and ordinary commercial arbitration in Africa.

Arbitral institutions in Africa

Many arbitral institutions or centres have been set up in African countries to provide the necessary facilities for effective and efficient arbitration. At present, nearly every African country has at least one arbitral institution or arbitral centre, for example, the Khartoum Centre for Arbitration in Sudan, the Commercial Arbitration Centre in Zimbabwe, and the Arbitration and Conciliation Centre in Tunisia. Some African countries have even established more than one arbitral institution, for example: the Arbitration Foundation of Southern Africa and Associations of Arbitrators in South Africa; and the Arbitration Centre of the Dakar's Chamber of Commerce, Industry, and Agriculture and the Dakar Arbitration and Mediation Centre in Senegal.Footnote 20

In order to promote international commercial arbitration in Africa and encourage the use of arbitration to settle trade and investment disputes, two regional arbitration centres, namely the Cairo Regional Centre for International Commercial Arbitration (CRCICA) and the Lagos Regional Centre for International Commercial Arbitration (RCICAL) were established in Egypt and Nigeria in 1979 and 1989 respectively, in accordance with agreements between the Asian-African Legal Consultative Organization (AALCO) and the governments of EgyptFootnote 21 and Nigeria.Footnote 22 The use of the centres and their facilities is increasing, evidenced, for example, by the increasing number of disputes submitted to RCICAL by 2006.Footnote 23 Many of the disputes involved parties from China, and the number of such disputes has grown quickly due to the increasing presence of Chinese businesses in Africa. According to a CRCICA survey, 11 per cent of disputes in the centre in 2009 and early 2010 involved Chinese parties, just below the number of disputes involving German parties, which was 12 per cent of the total.Footnote 24

There are other regional arbitration institutions in Africa. For instance, the member states of the Amman Convention set up the Arab Centre for Arbitration in Rabat, Morocco, to accept and arbitrate disputes submitted according to that convention. The preamble to the OHADA Treaty also specifies that it aims to promote arbitration as an instrument to settle contractual disputes. For this purpose, the Common Court of Justice and Arbitration (CCJA) was established, serving as both a court of justice and a permanent regional arbitration centre. Parties can refer their contractual disputes to the CCJA if one of the parties lives or habitually resides in one of the member states, or where the contract has been or is to be performed wholly or partly on the territory of one or more member states.Footnote 25

As mentioned earlier, most China-African trade and investment disputes currently occur in Africa, so much ink has been spilled over arbitration in Africa. However the Chinese government has made great efforts and adopted various measures to promote the import of goods from African countries, and more and more African people are coming to China seeking business opportunities.Footnote 26 As a result, trade and investment disputes involving parties from China and African countries will inevitably occur in China, and African parties can also submit disputes with their Chinese counterparts to arbitration in China.

Arbitration in China is governed by the 1994 Arbitration Law, as well as by the Notices, Opinions and Replies issued by the Supreme People's Court which serve as a form of judicial interpretation.Footnote 27 To give effect to foreign arbitral awards, China became a party to the New York Convention as early as 1986. In April 1956 the Foreign Trade Arbitration Commission (now the China International Economy and Trade Arbitration Commission, CIETAC) was set up in Beijing to arbitrate foreign trade disputes, and there are now over 200 arbitral institutions in China, located in nearly every part of the country. It is therefore very convenient and effective to settle commercial disputes through arbitration in China. In fact, African merchants prefer arbitration to litigation when they have disputes in China. For example, the author carried out a survey in Yiwu in June 2011 about the legal problems that Africans encountered in China. The survey uncovered a contractual dispute between a Ghanaian buyer and a Chinese seller; the arbitration clause in their sales contract expressly stipulated that all disputes arising from the contract should be submitted to arbitration at CIETAC in China.

ENCOURAGING THE USE OF ARBITRATION AS A MEANS OF DISPUTE SETTLEMENT FROM BOTH SIDES

In striking contrast to the rapid development of China-African trade and investment, the legal exchange between both sides is developing at a slower pace.Footnote 28 Fortunately, top officials from both sides have realized the importance of legal exchange and the significance of proper dispute settlement in guaranteeing the long-term development of China-African trade and investment. For example, the documents adopted at the past four Forums on China-African Cooperation (FOCAC) indicated that the exchange of legal professionals from both sides should be increased, judicial cooperation should be extended, and investment and trade disputes should be settled through amicable consultation. In the Sharm El Sheikh Action Plan adopted at the fourth ministerial FOCAC conference held in Cairo on 8–9 November 2009, the two sides noted “the importance of legal exchange” and agreed “to hold a FOCAC Legal Forum at an appropriate time”.Footnote 29 In particular, the “two sides agreed to encourage the usage of national and regional arbitration organs in resolving contractual conflicts between Chinese and African enterprises”.Footnote 30 This was the first time that both sides expressly encouraged enterprises or business people to settle their contractual disputes through arbitration. The fifth ministerial FOCAC conference on the Beijing Action Plan (2013–15), adopted on 23 July 2012 in Beijing, also expressly declared: “[both sides] agreed to further strengthen the institutional building of the Legal Forum and increase cooperation in the fields of law research, legal services, training of law professionals and the mechanism of non-judicial settlement of disputes.”Footnote 31

The role and status of arbitration in the settlement of investment disputes are also formally acknowledged in bilateral investment treaties (BITs). So far, China has concluded over 30 BITs with African countries.Footnote 32 Under the provisions in the BITs, disputes arising from the interpretation and application of the BIT between contracting states shall first be settled through diplomatic channels. Failing this, they shall be settled by the arbitral panel specifically established for resolving the dispute. Investment disputes between the investor and the host state shall first be settled through friendly consultation; failing this, the dispute may be submitted to the court in the host state, the ad hoc arbitral panel, or ICSID. In most cases, in the event of an investment dispute with a host state in Africa, the Chinese investor would prefer arbitration in ICSID.

It is also generally accepted among lawyers and business people from China and African states that arbitration is the best option to settle China-African trade and investment disputes. For example, the co-operation agreement concluded on 5 November 2006 between the China Council for the Promotion of International Trade and the Union of African Chambers of Commerce, Industry, Agriculture and Professions expressly requires that the two sides should encourage enterprises to resolve their disputes through non-litigious means such as arbitration, consultation and mediation.Footnote 33 At the FOCAC legal forums held in Cairo on 20–21 October 2009 and in Beijing on 15–19 September 2010, jurists and lawyers from China and African states discussed such important topics as the role of legal exchange in China-African co-operation, and the trade and investment dispute settlement mechanisms between both sides; they all emphasized the important role of arbitration in settling such disputes.

SOME IMPORTANT CONSIDERATIONS FOR ARBITRATION IN AFRICA

If Chinese businesses can make effective and efficient use of such a dispute settlement mechanism, their worries will be mitigated and their confidence will be enhanced when investing or trading in Africa.Footnote 34 Chinese businesses must pay special attention to the following issues when deciding to arbitrate disputes with their African counterparts in Africa.

First, Chinese businesses should have some knowledge about the arbitration systems in African countries. Some differences still exist between the different arbitration laws in African countries, despite the fact that many of them are based on the Model Law. For example, the parties are free to choose the venue of arbitration, the applicable law and the procedural rules etc under the arbitration laws in many African countries, but that freedom is restricted under some specific laws, especially those concerning foreign investment in African countries. The Petroleum Activities Law in Angola is one illustration. This legislation states that disputes involving petroleum activities may be resolved by arbitration, but that the arbitration shall have its seat in Angola and apply Angolan law. Most of the restrictive provisions are mandatory, and arbitration agreements made in breach of them will be invalid.

Secondly, it is advisable that the Chinese party chooses to arbitrate in a permanent arbitral institution. A permanent arbitral institution has its own administrative body and comprehensive arbitration rules which will expedite the arbitration process. If the African parties involved are unwilling to submit their disputes to a permanent arbitral institution in the West due to cost considerations or other factors, the Chinese investors can negotiate with them that the arbitral proceedings should take place in an African country, and may agree to submit their dispute to a permanent arbitral institution in Africa, such as CRCICA or RCICAL. Thus, not only may the cost be reduced, but an efficient and fair resolution may be guaranteed.

Thirdly, the seat of arbitration should be agreed to be in an African country where a court will not intervene in the arbitral process. Excessive intervention from a court will affect the arbitration process, resulting in delays or possible failure of the proceedings. For this reason, both parties should choose to arbitrate in an African country with less judicial intervention, especially in one of the African countries that has adopted the Model Law.

Finally, it is advisable that Chinese businesses seek to arbitrate in an African country that is a member state of the New York Convention. The New York Convention is the most successful convention on the recognition and enforcement of foreign arbitral awards and currently has over 145 member states.Footnote 35 If arbitration proceeds in an African country which is a party to the New York Convention, the arbitral award made there will be more readily recognized and enforced elsewhere.

PROPOSED STEPS TO IMPROVE ARBITRATION AS A MEANS OF SETTLING CHINA-AFRICAN TRADE AND INVESTMENT DISPUTES

The following specific steps could be taken to improve arbitration as a means of settling China-African trade and investment disputes.

First, judicial co-operation between China and Africa should be extended, and China should negotiate and conclude more bilateral judicial assistance treaties with African countries. This would facilitate the service of process abroad, the taking of evidence abroad, as well as the recognition and enforcement of foreign judgments or arbitral awards. As noted above, China has concluded bilateral judicial assistance treaties with Egypt, Morocco, Tunisia and Algeria;Footnote 36 this falls well short of what is needed for frequent China-African civil and commercial communications. China should consider concluding bilateral treaties with South Africa, Nigeria, Zambia, Angola and Sudan, which will all be important trading partners for China in the near future. China should also work with African countries to conclude more bilateral investment treaties or put those treaties which have been signed into effect.

Secondly, there should be a co-ordinating group for China-African business disputes, composed of lawyers and experts who are familiar with international trade and investment laws and practices from China and African countries. This group would provide legal services to those intending to invest or trade in those countries and provide legal assistance in the event of a dispute. Alternatively, a China-African legal information centre could be established, which would offer businessmen on each side easy access to the legal information that they need.

Thirdly, an arbitral panel for China-African business disputes should be set up within the arbitral institutions in China and African countries. This panel could comprise arbitrators from both sides and specifically provide arbitration for China-African business disputes.Footnote 37 For example, on China's side, CIETAC could establish an arbitral panel composed of legal experts from China and from African countries; on Africa's side, a similar arbitral panel could be established in CRCICA, RCICAL or the Southern African Arbitration Foundation. Africans investing or trading in China can provide in their contract that they will submit any disputes occurring in China to CIETAC, while Chinese investing or trading in African countries can specify that they will submit any disputes occurring in Africa to an arbitral institution in Africa.

Fourthly, the arbitration institutions in China and African countries could work together to prepare a model arbitration clause for parties to adopt in their contracts. African persons, natural or legal, investing or trading in China could submit their disputes with Chinese parties to CIETAC or another arbitration institution in China, and Chinese persons investing or trading in Africa could submit disputes with their African counterparts to an arbitration institution in Africa.Footnote 38

Finally, perhaps optimistically, a China-African joint arbitration centre could be established, having branches in China, northern African, western Africa, eastern Africa, southern Africa and central Africa. Such a centre could be composed of arbitrators from both China and African countries and provide arbitration for China-African business disputes.

CONCLUDING REMARKS

The number of civil and commercial disputes arising from China-African business relations has increased rapidly in recent years. Nevertheless, few legal scholars in China have considered the settlement of such disputes. No-one will deny that the law plays a significant role in promoting international trade and investment. Some foreign legal scholars have noticed this and are carrying out research in this field. Both China and countries in Africa must emphasize the role of law in the development of mutual trade and investment, and explore a viable way to settle disputes properly, based on field investigations and the legal culture and traditions in China and African countries. The author reaffirms that arbitration is the best option for the settlement of China-African civil and commercial disputes, and both China and countries in Africa should exert greater efforts towards improving arbitration as the means to settle civil and commercial disputes.

APPENDIX: Adoption of the Model Law, arbitration conventions and BITs by African countries

Footnotes

1 Zhu, W “OHADA: As a base for Chinese further investment in Africa” (2009) 129/89Penant 421;Zhu, W “南非商事仲裁法律制度述评” [“A preliminary analysis of the commercial arbitration system in South Africa”] (2004) 92 仲裁与法律 [Arbitration and Law] 50;Zhu, W “尼日利亚《仲裁与调解法》述评” [“A preliminary analysis of the Nigerian Arbitration and Conciliation Act”] (2005) 97 仲裁与法律 [Arbitration and Law] 50;Zhu, W “OHADA 仲裁法律制度述评” [“A brief analysis of the OHADA arbitration system”] (2008) 110 仲裁与法律 [Arbitration and Law] 57.

2 M Coleman “Africa: Arbitration nation”, available at: <http://www.bilaterals.org/article.php3?id_article=6328&lang=en§> (last accessed 12 April 2010); Tiewul, SA and Tsegah, FA “Arbitration and the settlement of commercial disputes: A selective survey of African practice” (1975) 124 International and Comparative Law Quarterly 393.

3 Asouzu, AAInternational Commercial Arbitration and African States: Practice, Participation and Institutional Development (2001, Cambridge University Press) at 48.

4 The Treaty on the Judicial Assistance in Civil, Commercial and Criminal Matters between the People's Republic of China and the Arab Republic of Egypt was concluded on 21 April 1994 and came into effect on 31 May 1995.

5 The Treaty on the Judicial Assistance in Civil and Commercial Matters between the People's Republic of China and the Kingdom of Morocco was concluded on 16 April 1996 and came into effect on 26 November 1999.

6 The Treaty on the Judicial Assistance in Civil and Commercial Matters between the People's Republic of China and the Republic of Tunisia was concluded on 4 May 1999 and came into effect on 20 July 2000.

7 The Treaty on the Judicial Assistance in Civil and Commercial Matters between the People's Republic of China and the People's Democratic Republic of Algeria was concluded on 10 January 2010 and came into effect on 10 February 2010.

8 Some states only acceded to the convention with certain reservations. See Appendix for more details.

9 Asouzu International Commercial Arbitration, above at note 3 at 49.

10 Contran, E and Amissah, AArbitration in Africa (1996, Kluwer Law International) at preface.

11 See Appendix for more details.

12 O Ajayi and P Rosario “Investments in sub Saharan Africa: The role of international arbitration in dispute settlement”, available at: <http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=oladiran_ajayi> (last accessed 20 August 2010). The author thanks Patricia Rosario for sending him this article.

13 Iraq, Jordan, Lebanon, Palestine, Syria, the Arab Republic of Yemen and the People's Democratic Republic of Yemen.

14 Algeria, Djibouti, Libya, Mauritania, Morocco, Sudan and Tunisia. See the Appendix for more details.

15 This organization currently has 17 member states. See the Appendix for more details.

16 With the exception of Equatorial Guinea and Guinea-Bissau, where Spanish and Portuguese are spoken respectively, and the English-speaking provinces of Cameroon.

17 With the exception of the English-speaking provinces of Cameroon, which have the common law tradition.

18 Martor, B, Pilkington, N, Sellers, DS and Thouvenot, SBusiness Law in Africa: OHADA and the Harmonization Process (2nd edition, 2007, GMB Publishing Ltd) at 259–84.

19 See Appendix for details of which African states have signed the Washington Convention, including those which have signed but not ratified it.

20 For a list of the names of arbitral institutions in western Africa, to see T Sutherland and G Sezneck “Alternative dispute resolution services in West Africa: A guide for investors”, available at: <http://www.fdi.net/documents/WorldBank/databases/benin/westafricaguide7212003.pdf> (last accessed 16 July 2010). For those in sub-Saharan Africa, see E Onyema “Regional approaches to enforcement: Enforcement of arbitral awards in sub-Sahara Africa” (paper presented at the Inaugural Conference of Alumni and Friends of the School of International Arbitration, London, 3 December 2008), available at: <http://eprints.soas.ac.uk/5996/1/Enforcement_of_Awards_in_Sub-Sahara_Africa.pdf.> (last accessed 26 July 2010).

21 The Agreement between the Government of the Republic of Egypt and AALCO was concluded on 24 July 1989 and is available at: <http://www.aalco.int/agreements/Agreement%20between%20AALCO%20and%20Government%20of%20Egypt.pdf> (last accessed 4 December 2012).

22 The Agreement between the Government of Nigeria and AALCO Relating to the Regional Center for Arbitration in Lagos was concluded on 26 April 1999 and is available at: <http://www.aalco.int/agreements/Agreement%20between%20AALCO%20and%20Government%20of%20Nigeria.pdf> (last accessed 4 December 2010).

23 Ajayi and Rosario “Investments in sub Saharan Africa”, above at note 12.

24 CRCICA annual report 2009–10. The author thanks Dr Mohamed Abdel Raouf, CRCICA secretary general, for sending him this report.

25 OHADA Treaty, art 21.

26 For example, an exhibition and sales centre for African goods was established on 1 April 2011 in Yiwu, a famous international small commodity market in China, to promote the import of goods from African countries. So far, Africans have set up more than 360 trading agencies in Yiwu and more than 1,000 African businessmen work there.

27 Zhu, W “Determining the validity of arbitration agreement in China: Towards a new approach” (2010) 6 Asian International Arbitration Journal 44 at 45.

28 Hong, Y and Zhu, W “China-Africa legal exchange and cooperation: The past, present and future” in Liu, H (ed) Fifty Years of Sino-African Cooperation: Background, Progress and Significance - Chinese Perspectives on Sino-African Relations (2009, Yunan University Press) 263 at 265.

29 FOCAC Sharm El Sheikh Action Plan (2010–12) at para 2.4.3, available in English at: <http://www.focac.org/eng/dsjbzjhy/hywj/t626387.htm> (last accessed 3 December 2012).

30 Id at paras 4.4.7 and 4.4.8.

31 FOCAC Beijing Action Plan (2013–15) at para 2.4.4, available in English at: <http://www.focac.org/eng/ltda/dwjbzjjhys/hywj/t954620.htm> (last accessed 11 December 2012).

32 See Appendix for full details.

33 G Pei “中非联合工商会正式成立” [“The China-African Joint Chamber of Commerce is formally set up”] (6 November 2006) 人民日报 [People's Daily] at 8.

34 According to responses to the questionnaire about legal issues relating to Chinese business in Africa that the author designed in 2010, most Chinese businesses would choose arbitration instead of litigation in Africa in the case of disputes with their African counterparts.

35 The list of contracting states can be found at: <http://www.newyorkconvention.org/contracting-states/list-of-contracting-statesb (last accessed 5 December 2012).

36 See notes 4–7 above.

37 In the current lists of arbitrators for the arbitral institutions in African countries, there are no or few arbitrators from China, and vice versa. This impacts on a party's consideration of where to submit their dispute. For example, according to the arbitrators' list published by CIETAC in May 2011, among nearly 300 foreign arbitrators, only three are from Africa and they are all from Egypt. See: <http://cn.cietac.org/Arbitration/ArbitrationBeadroll.shtml> (last accessed 4 December 2012). Meanwhile there are no arbitrators from China in the arbitral institutions in Africa. For example, though CRCICA has accepted many cases involving Chinese parties, it currently has no arbitrators from China. Taking into account the fact that, to date, most China-African civil and commercial disputes have occurred in Africa and were settled in African arbitral institutions, the arbitral institutions in Africa may consider drawing some arbitrators from China. In November 2011, the China Law Society legal delegation to Africa (of which the author is a member) visited Nigeria and South Africa. In discussions with the RCICAL director and other staff, the author proposed that the centre include some Chinese arbitrators in its arbitrators list; this generated considerable interest.

38 For example, a model arbitration clause for China-African business disputes could be drafted as follows: “(1) Both parties agree to submit their disputes arising from, or relating to, contracts to the following arbitration institution to settle through arbitration: [select one from the list] The China International Economic and Trade Arbitration Commission; The Cairo Regional Centre for International Commercial Arbitration; The Lagos Regional Centre for International Commercial Arbitration; The Nairobi Regional Centre for International Commercial Arbitration; The Arbitration Foundation in Southern Africa; or [please specify]. (2) The arbitration shall proceed in accordance with the arbitration rules that the parties have designated or negotiated in: [select one from the list] Beijing; Cairo; Lagos; Nairobi; Cape Town; or [please specify]. (3) The arbitration award shall be final and binding on both parties.”

39 Data collected from: <http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_status.html> (last accessed 11 December 2012).

40 Data collected from: <http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html> (last accessed 26 November 2012).

41 Data collected from: <https://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH&actionVal=ShowDocument&language=English> (last accessed 26 November 2012).

42 Data collected from: <http://www.ohada.com/etats-membres.html> (last accessed 3 December 2012).

43 Data collected from: <http://www.110.com/falv/zhongcaifa/zhongcaifagui/2010/0721/150060.html> (last accessed 11 December 2012).

44 Data collected from: <http://www.unctad.org/Sections/dite_pcbb/docs/bits_china.pdf> and <http://tfs.mofcom.gov.cn/column/2010.shtml> (each last accessed 10 December 2012).

Key:

Y The country signed, ratified, acceded to or adopted the convention, treaty or Model Law, or concluded a BIT with China.

(p) Previously adopted the Model Law with amendments in 2006.

(r) The country made the “reciprocity reservation” when it acceded to the New York Convention; it will only recognize and enforce arbitral awards made in the territory of another contracting state.

(c) The country made the “commerce reservation” when it acceded to the New York Convention; it will apply this convention only to differences arising out of legal relationships, whether contractual or not, that are considered commercial under the national law.

(s) The country has signed but not ratified the Washington Convention.

(n) The country has concluded a BIT with China, but it has not come into force.