Sino-african so­lu­tion

ChinAfrica - - Africa Report -

As in­fra­struc­ture im­proves, trade and busi­ness will con­tinue to grow. China has been Africa’s largest trade part­ner, shoot­ing past the United States and Europe in 2009. How­ever, with the scale of en­gage­ment go­ing up, busi­ness dis­putes are in­evitable. With courts in both African coun­tries and China suf­fer­ing from case back­logs, ar­bi­tra­tion cen­ters be­gan to spring up to solely ad­dress busi­ness and la­bor dis­putes. Then the African and Chi­nese au­thor­i­ties de­cided to es­tab­lish a se­ries of China-africa Joint Ar­bi­tra­tion Cen­ters (CAJACS) ded­i­cated to re­solv­ing Sino-african dis­putes.

“The in­ten­tion of CAJAC is to cre­ate an ar­bi­tral fam­ily of China and Africa to re­solve Chi­nese and African dis­putes in busi­ness, con­struc­tion and trade and in­vest­ment in a united fam­ily at­mos­phere,” said Michael David Ku­per, Pres­i­dent of the Jo­han­nes­burg-based Ar­bi­tra­tion Foun­da­tion of South­ern Africa. “The CAJAC pro­ject has been en­dorsed by African and Chi­nese lead­ers. They have all seen in the CAJAC pro­ject - the ap­pro­pri­ate ve­hi­cle for the res­o­lu­tion of dis­putes that may arise between China and Africa … At the heart of that vi­sion is the de­ter­mi­na­tion that dis­putes between China and Africa will now be de­cided by in­sti­tu­tions which rep­re­sent China and Africa and by ar­bi­tra­tors who are drawn from China and Africa.”

The first CAJACS were es­tab­lished si­mul­ta­ne­ously in Shang­hai and Jo­han­nes­burg in Novem­ber 2015, and each nom­i­nated 20 of their lead ar­bi­tra­tors to form a shared panel to ad­ju­di­cate over dis­putes.

On March 27, CAJAC Bei­jing and CAJAC Nairobi were launched at a cer­e­mony in Bei­jing at­tended by le­gal ex­perts from both coun­tries as well as rep­re­sen­ta­tives from the con­struc­tion and trans­port in­dus­tries. Two days later, a third CAJAC came up in Shen­zhen, a bustling com­merce city in south China’s Guang­dong Prov­ince, which has a con­cen­tra­tion of African busi­nesses. A China-africa ar­bi­tra­tion con­fer­ence will be held in Jo­han­nes­burg at the end of 2017.

“CAJAC is a good way to ex­pand le­gal co­op­er­a­tion,” said Gu Zhaomin, Di­rec­tor Gen­eral of the In­ter­na­tional Depart­ment of China Law So­ci­ety, the or­ga­ni­za­tion of Chi­nese le­gal pro­fes­sion­als. “Its main fea­tures are that it em­pha­sizes the broth­er­hood between China and African coun­tries, is low in cost and high in ef­fi­ciency, and con­sists only of Chi­nese and African ar­bi­tra­tors.”

In the past, in­ter­na­tional trade dis­putes were gen­er­ally taken to Euro­pean courts. “But there were com­plaints that it takes too long and also costs a lot,” Gu ex­plained. “So peo­ple started think­ing why not do the ar­bi­tra­tion in Africa or China? It’s very con­ve­nient and also, CAJAC ar­bi­tra­tors know one an­other’s cul­tures and le­gal sys­tems bet­ter. Be­sides, China and Africa are fo­cus­ing on de­vel­op­ment. So even af­ter the res­o­lu­tion of dis­putes, they can re­main good friends and part­ners. Cul­ture is a foun­da­tion for the res­o­lu­tion of com­mer­cial dis­putes. These are the ad­van­tages of CAJAC.”

“So when busi­nesses de­cide to cross bor­ders and de­velop new ini­tia­tives over­seas, it is im­per­a­tive that it is done on the ba­sis of knowl­edge of the new mar­ket, the new le­gal sys­tem, the [new] busi­ness com­mu­nity and the environment in which the busi­ness com­mu­nity op­er­ates. Ig­no­rance will cause you sur­prise be­cause it will not al­low you to as­sess the le­gal risk cor­rectly,” said Ku­per.

To do busi­ness in South Africa, for ex­am­ple, he pointed out that for­eign in­vestors should know about the coun­try’s strong la­bor unions and la­bor laws, which con­trol all hir­ing and fir­ing. Be­sides, projects must cre­ate “spe­cial ve­hi­cles” to ben­e­fit the lo­cal de­prived pop­u­la­tion.

CAJAC’S other ad­van­tage, he said, was that it was there to pro­vide not only pro­tec­tion but also in­for­ma­tion to all those who want to set up a busi­ness, whether in South Africa, Kenya or the neigh­bor­ing states.

“The CAJAC data base will have … im­por­tant in­for­ma­tion which will help you as­sess le­gal risk and which will bring you into touch with le­gal prac­ti­tion­ers in Africa,” Ku­per said. “These are the mech­a­nisms which will al­low you to come to Africa on an in­formed ba­sis.”

In the fu­ture, CAJACS would be formed in dif­fer­ent African and Chi­nese cities and even­tu­ally, one set of rules would be cre­ated for all the cen­ters, mak­ing ar­bi­tra­tion faster. There’s more to le­gal co­op­er­a­tion than ar­bi­tra­tion.

“The ba­sic ob­jec­tive is to pro­mote bet­ter un­der­stand­ing of the le­gal cul­ture of China and African coun­tries, le­gal pro­fes­sion­als and dif­fer­ent le­gal sys­tems. It’s also to pro­mote prac­ti­cal co­op­er­a­tion among law firms, law schools, law re­search in­sti­tu­tions and courts as well as le­gal ad­min­is­tra­tive sys­tems. It’s the whole pic­ture,” Gu said.

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