Shaping the table, not just sitting at it: African practitioners and the future of arbitration

The University of Cape Town’s inaugural Alternative Dispute Resolution (ADR) Lecture, delivered by Funke Adekoya SAN on 8 October, marked a milestone in the University’s commitment to promoting capacity building and thought leadership in dispute resolution through its newly established ADR Unit.

The lecture brought together academics, practitioners, students, and policymakers to engage in a timely conversation about the gap between Africa’s visible participation in arbitration and its limited representation at the highest levels of arbitral decision-making.

As Adekoya put it, the central focus of her presentation was “to explore the gap between the ideal of global representation in arbitration and the reality faced by African practitioners, and how the next generation of African practitioners can help close that gap”.

Representation and Legitimacy: The Need for Diversity

Adekoya began with a compelling observation: while Africa has been at the centre of many of the world’s most high-profile commercial and investment disputes, African arbitrators remain severely underrepresented.

According to recent data from leading institutions including ICC, LCIA and ICSID; African arbitrators constitute less than eight percent of appointments in major international cases. This discrepancy, Adekoya argued, strikes at the heart of the legitimacy of the arbitral process.

Drawing on the IBA Survey on Ethnic Diversity in International Arbitration, she noted that diversity in arbitration is not simply a symbolic goal—it is a practical necessity. Diverse tribunals are better equipped to deliver fair, balanced, and context-sensitive awards.

Quoting Professor Emilia Onyema, Adekoya emphasised that the international arbitration community ‘is not homogenous’ and that its norms, rules, and cultures are shaped by those who actively participate in its development. Without inclusive participation, the system risks reproducing the biases and hierarchies of its dominant actors.

For Adekoya, the question of representation is thus linked directly to legitimacy. “A process dominated by one region or one perspective cannot claim to be truly global,” she said. Diverse panels promote public trust, enrich deliberation, and enhance voluntary compliance with arbitral awards — a view echoed in the IBA Survey’s finding that parties are more likely to accept decisions rendered by ethnically diverse tribunals.

As noted by a respondent in the IBA Survey: “ethnic diversity is important to give the arbitral tribunal legitimacy. When I see a construction case where the arbitrators are three English lawyers and the project is in my region, outside Europe, that undermines legitimacy in my view”.

Adekoya also observed that diversity creates representation. This idea captures both the symbolic and practical value of inclusion — not merely as a matter of optics, but as a necessary feature of legitimacy and access.

She noted that meaningful participation in arbitration must extend to every level of the process: as arbitrators, counsel, tribunal secretaries, and institutional leaders.

A striking illustration of this came in the Jay-Z trademark arbitration under the American Arbitration Association (AAA) Rules, where the artist challenged the lack of African-American arbitrators in the panel list presented to him. Jay-Z petitioned the New York court to stay the proceedings, arguing that the absence of diverse arbitrator options violated his rights to equal protection and fair access. In response, the AAA expanded the roster by adding eighteen African-American candidates and committed to broader reforms to ensure greater diversity in its arbitrator lists.

The episode stands as a pivotal reminder that diversity is not only a moral imperative but also a structural requirement for credibility and fairness in arbitration

Barriers to African Representation

Adekoya identified several structural and perceptual barriers that continue to limit the inclusion of African practitioners in arbitration. Chief among these is the ‘repeat-player’ problem: arbitral institutions and parties tend to appoint the same familiar names, often from Europe or North America, citing experience and reliability. This cycle of preference perpetuates exclusion, even when equally capable African professionals exist.

The second barrier is visibility. Many African practitioners operate outside the dominant international networks where appointments are made. As a result, they face limited access to opportunities for nomination and mentorship. Adekoya also noted that biases—both conscious and unconscious — sometimes lead to perceptions that African arbitrators may lack neutrality, a misconception she challenged as both unfair and counterproductive.

These systemic obstacles are compounded by institutional practices. Of the 204 arbitrator appointments made by the LCIA in 2024, only 11 were Africans. The ICC, despite administering 194 cases involving African parties, appointed just 58 African arbitrators out of 1,020 total.

The statistics, Adekoya warned, reveal an enduring imbalance that undermines arbitration’s claim to universality.

Efforts to Bridge the Gap

Despite these challenges, Adekoya acknowledged significant progress driven by global and African-led initiatives.

The ‘African Promise’, launched in 2019, continues to advocate for the appointment of African arbitrators in Africa-related disputes. Institutions such as the ICC, LCIA, and the American Arbitration Association (AAA) have adopted inclusive language and internal policies to promote greater ethnic, racial, and gender diversity in arbitrator appointments.

At the academic level, the University of Cape Town’s newly established ADR Unit joins this momentum by positioning itself as a home-grown centre of excellence comparable to global programs such as the Geneva MIDS, offering specialised training at accessible cost.

These initiatives, Adekoya suggested, collectively form a scaffolding for a more inclusive arbitral order — one where African voices are not peripheral but central to shaping norms and outcomes.

The Role of African States and Institutions

Adekoya’s lecture also placed responsibility on African States, which are among the most frequent parties to arbitration. She urged governments to promote inclusion by appointing African arbitrators in disputes involving them and by retaining arbitration seats within the continent.

Although African parties are increasingly involved in global arbitration, most still choose non-African seats such as London or Paris. This trend, she argued, can be reversed if African jurisdictions adopt the CIArb ‘Safe Seat’ principles and strengthen domestic institutions to host credible proceedings.

Preparing the Next Generation

Turning to the next generation, Adekoya delivered a clear message: the future of arbitration will belong to those who prepare for it.

She encouraged young practitioners to pursue structured training through institutions like CIArb and ICCA, engage in moot competitions such as the Vis Moot, and publish commentary to build professional visibility.

Participation in professional networks such as ICCYAAF, Young ICCA, CIArb Young Members, and the African Arbitration Association — was highlighted as vital to career development.

She challenged young lawyers to take ownership of their professional trajectories. Citing Shirley Chisholm’s famous line, Adekoya remarked, “If they don’t give you a seat at the table, bring a folding chair.”

Representation, she emphasised, is not a gift to be granted but a position to be earned through diligence, excellence, and persistence.

Conclusion: Shaping the Table, Not Just Sitting at It

In closing, Adekoya underscored that global representation in arbitration is not aspirational — it is essential to its legitimacy and sustainability.

She called on arbitral institutions, African States, and law firms to act deliberately in promoting diversity. Without it, the system risks losing credibility among users and stakeholders.

Her final message was both visionary and urgent: “Representation is not just about being present at the table. It is about shaping the table itself: designing the processes, influencing the standards, and defining the future.”

For African practitioners, she concluded, the challenge is clear—to move from the margins of participation to the centre of leadership in international arbitration.

Joseph Siyaidon MCIArb is a Nigerian lawyer and international arbitration practitioner, Lead Counsel at Joseph Siyaidon LP, and an ICC YAAF Representative for Africa for 2024-2026