Beyond strong legal skills, practitioners working on international disputes in African markets need to have very effective and strategic communication skills – and the ability to deal with unexpected turns of events, say Khrushchev Ekwueme and Paula Hodges QC.
“The starting point is that African-focused dispute practitioners must have effective communication skills,” emphasised Ekwueme, a partner at leading Nigerian firm Olaniwun Ajayi LP. “You need the ability to present thoughts and ideas clearly, concisely, and in a compelling manner to be able to attract and manage large or complex international disputes.”
Resolving disputes of an international nature – such as when companies from several countries are investing in energy, mining or other projects in an African nation – often brings extra complexities and nuances not typically seen in purely domestic contractual disputes.
“You’ve nearly always got a mix of international companies on board who will come at this with a different approach,” explained Hodges, who heads the global arbitration practice at Herbert Smith Freehills and is President of the London Court of International Arbitration (LCIA). “I’ve been involved in projects that involved an American company, a French company and a Chinese company, and I can assure you the way they each do business is very different.”
It's important to be very culturally aware and not assume things will be done in the way you may be used to – or that the way you’re used to is the best way. Politics can also play a part.
“From my experience of dealing with disputes across North Africa, West Africa, and Southern Africa, there is always more at play than the usual issues that come up in a commercial venture,” added Hodges. “There will be a lot of political issues at play, particularly in energy and natural resources, which many African countries are very rich in. It’s a keen focus for governments, political parties, and political influencers.”
Lawyers need to expect “shots across the bow” in any dispute, from unexpected sources.
There will nearly always be a “political overlay” or influential people who have a stake in the project, said Hodges. That’s another reason why it’s vital for overseas lawyers to work closely with local counsel and any clients on the ground “to try to understand what these extraneous factors are and how you then deal with them as part of your case strategy”.
African lawyers working with international counsel on disputes should identify subtleties and risks posed by the case, while assessing the strengths and weaknesses of the client, and showing a good understanding of their commercial objectives. Lawyers in this situation must have the ability to co-create legal solutions that advance those commercial objectives, said Ekwueme.
“Lawyers need to be well versed in more than contract law; conflict of laws, constitutional law, administrative law and international law can also have an impact on international disputes, based on my experience of handling a broad spectrum of cross-border disputes locally and on the international plane,” he said.
With an increase in foreign investment in a variety of African industries, the rapid digitisation of business and legal practice during the pandemic, and growing use of African arbitration centres rather than traditional offshore centres, it will become more and more important for African and international lawyers to collaborate on projects and dispute resolution.
“I have learned so much from my African colleagues about how to deal with the issues that inevitably come up in African disputes, and how you work through to find the best solution,” Hodges commented. “But I think it’s important for local lawyers to also appreciate the experience of international lawyers, particularly if you’re appearing before a tribunal of international arbitrators where lawyers such as myself might know these people a lot better and know how they’re going to expect a dispute to be presented. In the end, it’s all about cooperation, and working out the best way of handling a particular dispute for the client.”
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