Zaiwalla & Co has been
active across Africa for
over 30 years
Advising on commercial, construction, consumer goods and regulatory disputes, both as advisers and in contested litigation and arbitration. Over 90 per cent of our clients are based outside Britain, and we have 125 reported cases in the United Kingdom, a high number for a firm of our size.
We are a City of London firm practising the law of England and Wales, and we act for African clients and for international companies in dispute with African counterparties and states. We understand the commercial, cultural and political conditions that shape disputes in particular African states, and our long relationships with local firms and lawyers let us put a reputable local representative alongside us wherever jurisdiction-specific advice is needed.
How was our Africa
practice built?
Cocoa, cashew, rice, cotton and fertiliser contracts running into and out of West and East Africa are written on English law terms and GAFTA and FOSFA forms, and the disputes come to London arbitration. Mining and infrastructure work followed, and with it disputes against state entities and state owned mining companies.
GAFTA Arbitration Rules No 125 place the seat in England, so the Arbitration Act 1996 governs the reference and the Commercial Court supervises the award, wherever the cargo moved. Our international arbitration and marine and international trade teams run those references and the enforcement that follows them.
Our expertise
We act for African corporates, banks, state entities and individuals, and for international companies with African exposure, in the Commercial Court and in GAFTA, FOSFA, LMAA, LCIA, ICC and ICSID proceedings, and in the enforcement proceedings that follow an award, whether you are claimant or respondent. Our African work includes:
Commodities Disputes
Commodities disputes under GAFTA and FOSFA rules, including quality, shortage, default, force majeure and prohibition claims
Shipping & Charterparty Arbitration
Shipping and charterparty arbitration, covering laytime, demurrage, cargo damage, mis-delivery and bill of lading disputes
Mining, Oil, Gas & Infrastructure Disputes
Mining, oil, gas and infrastructure disputes, including licences, concessions, joint ventures and offtake agreements
Construction & Engineering Claims
Construction and engineering claims, including FIDIC contracts, delay, variations and defects
Investment Treaty Arbitration
Investment treaty arbitration under bilateral treaties and the ICSID Convention, for investors and for states
State Immunity Arguments
State immunity arguments under the State Immunity Act 1978, both to establish jurisdiction and to resist execution
Recognition & Enforcement of Awards
Recognition and enforcement of awards under the New York Convention 1958 and, in OHADA states, under the Uniform Act on Arbitration
Freezing Injunctions, Asset Tracing
Freezing injunctions, asset tracing and enforcement against assets in England and Wales
Regulatory Disputes
Regulatory, competition and consumer goods disputes, and internal investigations
Sanctions & Trade Controls Advice
Sanctions and trade controls advice affecting African trade, shipping and banking
Former and ongoing work
We have acted both against
African states and for parties
based in an African state
In Union Marine Classification Services LLC v Government of the Comoros, [2016] EWCA Civ 239, the Court of Appeal gave judgment on 12th February 2016 in proceedings arising from a services agreement with the Comoros government, and the government’s counterclaims failed. The dispute is one of those recorded in our case record.
Section 9(1) of the State Immunity Act 1978 provides that where a state has agreed in writing to submit a dispute to arbitration, “the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration”, and that provision does much of the work in African state disputes heard in London. Our lawyers have run references and enforcement proceedings involving parties across West, East and Southern Africa, and where a matter must be heard locally, we instruct and manage counsel on the ground.
Awards against African states in the mining and banking sectors have reached substantial figures and enforcing them now occupies as much of our time as the arbitrations themselves. We are advising on enforcement routes, on state immunity from execution and on the recognition of awards in OHADA and non-Convention states.
Our team also acted for a UAE media company in an ad hoc arbitration with a value of hundreds of millions of dollars against an East African state media outlet. The matter was so significant it was discussed in Parliament.
Speak to our team
We provide the quality of service expected of a City firm at considerably lower rates. To find our more, please phone +44 20 7312 1000 or email info@zaiwalla.co.uk.
Frequently asked questions
Is your African state counterparty covered by OHADA?
Check the state. The Organisation for the Harmonisation of Business Law in Africa covers 17 member states, mostly in West and Central Africa, and its Uniform Act on Arbitration applies directly in each of them, overriding inconsistent national law. Kenya, Nigeria, Tanzania, Ghana, South Africa, Egypt and Morocco are outside OHADA and apply their own arbitration statutes, so recognition of your award follows a different route in each group.
Can you enforce an award in Togo?
Yes, but not under the New York Convention 1958, because Togo is not a party to it. Article 34 of the OHADA Uniform Act on Arbitration provides the recognition route for awards made outside the member state, and Articles 30 to 33 set out exequatur, its deemed grant and the appeal to the Common Court of Justice and Arbitration. Enforcing in a non-Convention state is workable, provided the strategy is built for it from the start.
How long does OHADA exequatur take?
Fifteen days for the first decision. Under the OHADA Uniform Act on Arbitration the competent judge of the member state rules on the application for exequatur within 15 days, and if no decision is given in that period the exequatur is treated as granted and the applicant may proceed. A refusal can be taken by way of cassation to the Common Court of Justice and Arbitration in Abidjan.
Can you sue an African state in England?
Where an exception to immunity applies. The State Immunity Act 1978 removes immunity for commercial transactions under section 3, for written arbitration agreements under section 9 and for submission to the jurisdiction under section 2. Proving your claim and getting paid are separate problems, because immunity from execution protects most state property, and enforcement usually has to target commercial assets.
Which rules govern your African commodities dispute?
Usually the contract form. GAFTA and FOSFA contracts contain their own arbitration rules, and GAFTA Arbitration Rules No 125 place the seat in England, which brings in the Arbitration Act 1996 and the supervisory jurisdiction of the Commercial Court. Time limits in those rules are short and are strictly applied, so the first thing to check on a new dispute is the deadline for appointing an arbitrator.
Can you bring an investment treaty claim?
If a treaty covers your investment and you meet its conditions. Most African states are parties to bilateral investment treaties and to the ICSID Convention, and claims have succeeded on expropriation and fair and equitable treatment grounds. Tribunals also dismiss claims and award costs against investors, as in the Kenyan mining arbitrations, so the merits, the legality of the investment and the treaty’s definitions need testing before you commit.
What is your next step?
Send us the contract, the arbitration clause and the correspondence, with a note of where your counterparty holds assets, by email to info@zaiwalla.co.uk or by telephone on +44 20 7312 1000. We will tell you where the dispute should be heard, how an award against them can be enforced, and whether state immunity stands in the way.