Arbitration International Advance Access published September 9, 2016

Arbitration International, 2016, 0, 1–20

doi: 10.1093/arbint/aiw034
Article

Arbitrability and public policy: an African

perspective
Joseph Mante*

ABSTRACT
Growth in international trade has led to considerable expansion of the scope of

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matters capable of settlement by arbitration. In spite of sustained scholarly activity on
arbitra- bility, the question of what is arbitrable remains controversial but relevant in
many re- gions of the world, including Africa. Arbitrability has the potential to affect
the validity of an arbitration agreement, strip an arbitrator of jurisdiction, or derail
enforcement of an award. Given the significance of the concept, it is vital that entities
involved in inter- national transactions do not speciously extrapolate knowledge of
what pertains in Europe and America across all jurisdictions and regions of the
world. This study draws a comparison between arbitrability and its relationship
with public policy in Europe and America on one hand, and the trend in Africa in
an attempt to critically investigate the extent to which African states are willing to
extend the scope of arbitrable subject matters. A number of trends on arbitrability
are discernible. Most commercial disputes are arbitrable and this observation
generally aligns with practice in Europe and America. Beyond this, there are three
significant differences in the areas of scope of subject matter, approaches to
arbitrability regulation and the role of public policy.

1. INTRODUCTION
Globalization and the expansion of international trade have led to a considerable
expan- sion of the scope of commercial matters, which are capable of settlement by
arbitration. This development notwithstanding, the concept of arbitrability remains a
controversial but an important subject. The international impact and dynamics of
arbitrability has made it an important subject for discussion in international
commercial arbitration.1 The concept has the potential to affect the validity of an
arbitration agreement, strip an

* Joseph Mante, LLB, LLM, and PhD (Construction Dispute Resolution). A lawyer of over ten years’
experi- ence in Property, Contract and Commercial law practice in Ghana, West Africa and currently, a
lecturer at the Law School, Robert Gordon University, Aberdeen, Scotland. E-mail: j.mante@rgu.ac.uk. An
earlier ver- sion of this article was presented at the 106th Annual Conference of the Society of Legal
Scholars held at York, UK, where it received a nomination for the Best Paper Award. The author wishes
to thank Dr Dania Thomas, Dr Andrey Kotelnikov, and Dr Leon Moller for their invaluable comments on
earlier drafts. The author also acknowledges the support of Prof Ken Mackinnon, Prof Issaka
Ndekugri, and Mr David Christie.
1 LA Mistelis and SL Brekoulakis (eds) Arbitrability: International & Comparative Perspectives (Kluwer Law
International 1999).

VC The Author 2016. Published by Oxford University Press on behalf of the London Court of International Arbitration.
All rights reserved. For Permissions, please email: journals.permissions@oup.com
● 1
2 ● Arbitrability and public policy

arbitrator of jurisdiction to determine a matter in spite of party agreement or derail

en- forcement of an award.2 It is therefore not surprising that after years of scholarly
work on the subject, there are still concerns with the concept of arbitrability.
The Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, 1958 (the New York Convention) and the United Nations Commission
on International Trade Law (UNCITRAL) Model Law, 1985 (as amended in
2006) (the UNCITRAL Model Law) leave the determination of the issue of what
subject matters are arbitrable to individual States. Historically, States have made
such deter- minations on the basis of considerations such as public policy, which
in turn, is dic- tated by several other factors including economic, political,
social, and cultural demands.3 There is evidence that in Europe and America, the
effect of public policy as a determinant of what is arbitrable is waning. 4 The

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implication is that public policy is no longer a bar to arbitration but remains one
of the legal considerations at the award stage or during enforcement of the
award. It also signals a further widening of the scope of matters that are
arbitrable.
Relying on relevant literature and arbitration laws, this study draws a comparison be-
tween arbitrability and its relationship with public policy in Europe and America on one
hand, and the trend in Africa in an attempt to critically investigate the extent to which
States in Africa are willing to extend the scope of subject matters capable of
resolution by arbitration. This study is important for a number of reasons. First of all,
it is impera- tive that foreign entities involved in transnational commercial
transactions in Africa be- come aware that the scope of subjects that are arbitrable in
Europe are not necessarily the same as those in the African jurisdictions where they
may be transacting business. In selecting arbitration as a preferred dispute
resolution method, parties need to be aware of the extent to which disputes that
arise out of their respective transactions will be arbitrable. Secondly, it is important
that parties seeking to enforce their awards in a jurisdiction in Africa are aware of
possible challenges under the New York Convention as a result of the relatively
distinct scope of what may be arbitrable in the African con- text. Finally, there is a
gap in the literature on the African perspective of arbitrability generally and the
role of public policy in the determination of what is non-arbitrable.
The article is divided into five sections. The first section provides a brief overview
of the concept of arbitrability. The second section surveys the current trend and
rela- tionship between arbitrability and public policy in the European and
American con- texts. This is followed by an examination of the trend in Africa.
Under this third section, approaches to the regulation of international arbitration, in
general, and arbi- trability specifically are explored. Then there is an examination
of the scope of non- arbitrable matters on the continent. The fourth section
discusses some of the key is- sues that emerge from the material on arbitrability
from Africa, how they compare with the trends in Europe and the persisting role
of public policy. The final section pulls together conclusions from the
discussions.

2 Convention on the Recognition and Enforcement of Foreign Arbitral Award, 1958 (the New York
Convention), art V (2) (a); UNCITRAL Model Law on International Commercial Arbitration, 1985 (as
amended in 2006) (the UNCITRAL Model Law) art 34 (2) (b) (i).
3 N Blackaby and others, Redfern and Hunter on International Arbitration (5th edn, OUP 2009) para 2.114.
 Arbitrability and public policy ● 3
4 JT McLaughlin, ‘Arbitrability: Current Trends in the United States’ (1995–1996) 59 Alb L Rev 905,
915ff; A Kirry, ‘Arbitrability: Current Trends in Europe’ (1996) 12(4) Arb Int’l 373–90.
4 ● Arbitrability and public policy

2. ARBITRABILITY
A dispute is arbitrable if it is ‘capable of settlement by arbitration’.5 This
definition implies that there are disputes which are incapable of resolution by
arbitration. Disputes may be non-arbitrable for different reasons. States wielding
power to determine how disputes arising from transactions in their jurisdictions are
resolved may exclude certain matters from the private process of arbitration for reasons
including public interest, pub- lic policy, and the need for judicial protection.6 In such
instances, a dispute may be arbi- trable or non-arbitrable simply on the basis of the
subject matter involved.7 Traditionally, this is the sense in which the concept of
arbitrability has been used.8
Viewed broadly, this is not the only reason why a specific dispute involving
spe- cific individuals and entities may not be capable of resolution by

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arbitration. As a consensual process, arbitration can be utilized as a dispute
resolution process only if parties expressly or by implication9 consent to use the
process.10 Where there is no evidence of an agreement, disputes may be incapable
of settlement by arbitration—it has been argued that such disputes will be non-
arbitrable.11 Similarly, disputes out- side the scope of the agreement to arbitrate
are non-arbitrable, in principle, not as a result of a statutory injunction but
because the parties’ consent or agreement to arbi- trate does not extend to such
disputes.12 Further, Bo¨ckstiegel has argued that the concept of arbitrability
should be view broadly beyond an objective criterion that fo- cuses on subject
matter; there is a place for a subjective criterion which focuses on the capacity of
parties to an arbitration agreement.13 In his view, lack of requisite le- gal capacity,
though not traditionally considered a matter for arbitrability, will even- tually
make certain disputes incapable of settlement by arbitration even in the context
of international arbitration.14

5 See the New York Convention (n 2) arts II (1) and V (2) (a); UNCITRAL Model Law (n 2) arts
34(2)(b) and 36(1)(b)(i).
6 GB Born, International Arbitration: Law and Practice (Kluwer Law International 2012) 82.
7 TE Carbonneau, ‘Liberal Rules of Arbitrability and the Autonomy of Labor Arbitration in the
United States’ in Mistelis and Brekoulakis (n 1) para 8-1.
8 See Arbitration (Scotland) Act 2010 (asp1) s 30 (where arbitrability is defined with a clear focus on sub-
ject matter); Blackaby and others (n 3) para 2.111; J Mante and I Ndekugri, ‘Arbitrability in the Context
of Ghana’s New Arbitration Law’ [2012] 2 Int’l ALR 31, 32.
9 Instances where consent is implied. See, eg Stellar Shipping Co LLC v Hudson Shipping Lines [2010]
EWHC 2985; [2012] 1 CLC 476 where a guarantor of an agreement containing an arbitration clause was
held to be bound by the clause even though it was not party to the original agreement and so had not
ex- pressly consented to the arbitration clause therein. See also WW Park, Non-signatories and
International Contracts: An Arbitrator’s Dilemma (OUP 2009).
10 An exception here will be statutory arbitrations.
11 See American case of MCI Telecommunications Corp v Exalon Indus Inc 138 F 3d 426 at 429 (1st
Cir 1998) cited in AS Rau, ‘The Arbitrability Question Itself’ (1999)10 Am Rev Int’l Arb 287, 355
(where the judge argued that absence of arbitration agreement raises a fundamental question of
arbitrability). See also Blackaby and others (n 3) para 2.111; AS Rau, ‘Arbitral Jurisdiction and the
Dimensions of “Consent”’ (2008) 24(2) Arb Int’l 199–264. See also W Park, ‘The Arbitrability Dicta in
First Options v Kaplan: What Sort of Kompetenz–Kompetenz Has Crossed the Atlantic?’ (1996) 12
Arb Int’l 137.
12 Rau, ‘The Arbitrability Question Itself’, ibid.
13 K-H Bo¨ckstiegel, ‘Public Policy as a Limit to Arbitration and its Enforcement’ (2008) 2 Disp Resol
Int’l 123,126–8.
 Arbitrability and public policy ● 5
14 ibid.
6 ● Arbitrability and public policy

The import of the foregoing is that the concept of arbitrability has different
di- mensions and may arise in different circumstances in the context of arbitration.
The question whether a dispute is capable of settlement by arbitration can thus,
be an- swered by looking at four different aspects of the arbitration process namely
the sub- ject matter of the arbitration, the existence or otherwise of an arbitration
agreement, the scope of the agreement and the capacity of the parties. This study
focuses mainly on arbitrability in the traditional sense, that is, as it relates to the
subject matter of ar- bitration—this is the sense in which the term is used in the
New York Convention and the UNCITRAL Model Law. Even so, in the African
context, it appears that the laws that define arbitrability and non-arbitrability
often embrace both the objective and subjective dimensions of the concept.
Consequently, some reference in this work to the subjective dimension of

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arbitrability in the African context is inevitable.

2.1 Arbitrability in the context of arbitration

Arbitrability, as a concept, raises a number of questions on the process of
arbitration. Which law governs the question of arbitrability? In what circumstances
can the ques- tion of arbitrability be raised? Who determines the question of
arbitrability? What are the possible consequences of non-arbitrability on the
arbitration process and its out- come? These questions are briefly examined in
succession. In both domestic and inter- national arbitration, states have the
prerogative to determine what subject matters are capable of settlement by arbitration
within their respective jurisdictions. This position is supported by provisions from
two key instruments on international commercial arbi- tration namely the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
1958 (NYC) and the UNCITRAL Model law on international Commercial
Arbitration, 1985 (as amended in 2006) (the Model Law).15 As the deter- mination
of what is arbitrable remains a matter for individual states, different approaches,
often influenced by public policy considerations,16 have been adopted by states.17 This
also means a subject matter arbitrable in one jurisdiction may not be ar- bitrable in
another. The effect is that there is likely to be confusion as to the arbitrabil- ity of a
matter in the context of international arbitration.18 Consequently, parties to
arbitration are free to contest the arbitrability or otherwise of a pending claim.
In the context of international arbitration, the governing law for arbitrability will
depend on a number of factors including the time it is raised. If raised in the
course of the arbitration proceedings as a jurisdictional challenge or in defence to
a claim, there are several possible sources of law that may apply. These include
the law gov- erning the arbitration agreement or the law of the seat of the
arbitration.19 When the

15 See the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, art V (2) (a)
and UNCITRAL Model Law (n 2) arts 1(5) and 34 (2) (b) (i).
16 McLaughlin (n 4) 915–6.
17 EA Schwartz, ‘The Domain of Arbitration and Issues of Arbitrability: The View from the ICC’
(1994) 9(1) ICSID Review 17ff.
18 J Vincent, ‘Oh, What a Tangled Web We Weave: The Implications of Conflicting Domestic Policy
on Arbitrability and Award Enforcement’ (2015) 38 Hastings Int’l & Comp L Rev 141.
19 In French Consultant v Egyptian Local Authority (ICC Case No 6162) (1992) XVII Yearbook Comm
 Arbitrability and public policy ● 7
Arb 153, it was held that the law of the seat of the arbitration (the law of Switzerland) applied to the
question of arbitrability even though Egyptian law was the applicable law by agreement.
8 ● Arbitrability and public policy

issue of arbitrability is raised at the stage of recognition and enforcement, Article V

(2) (a) of the New York Convention20 implies that the law of the forum of
enforce- ment shall apply.21 However, the question is not as simple as it appears.
A tribunal dealing with the question of arbitrability even in the course of the
arbitration cannot overlook and thus, may take into account the law of the place
of enforcement for practical reasons.22
A question of arbitrability may be determined either by an arbitral tribunal
or a designated national court.23 It is widely accepted both domestically and
internation- ally that the tribunal has power to determine its own jurisdiction
under the compe- tence–competence principle.24 Alternatively, there are, at least,
three instances where a national court may be called upon to determine the
question of arbitrability: first, where there is a repeat application by a party who

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disagrees with a first instance rul- ing by an arbitral tribunal on the question of
arbitrability;25 secondly, where the rele- vant national legislation provides
alternative means of dealing with jurisdictional issues directly through the court
as is the case under section 32 of the English Arbitration Act, 1996; and finally,
when the question of arbitrability is raised as a de- fence to the enforcement of an
award under the New York Convention.

3. ARBITRABILITY AND PUBLIC POLICY: TRENDS IN

EUROPE AND AMERICA
The concept of public policy is notoriously difficult to define due to its vague
con- fines and characteristic lack of uncertainty.26 Nevertheless, it has played a
major role in both domestic and international legal discourse on arbitration. 27
An ‘unruly horse’28 it may be but its influence lives on. An interim report by the
Committee on

20 UNCITRAL Model Law (n 2) art 36.

21 See Company M v MSA, No 6 Cour d’appel, Brussels, 4 October 1985 reported in XIV Yearbook
Comm Arb (1989) 619.
22 See T Carbonneau, ‘Shattering the barrier of Inarbitrability’ (2011) 22 Amer Rev Int’l Arb L 573,
596 (the author argues that the tribunal in a given situation may be confronted with a choice
amongst differ- ent variations of competing laws).
23 Matters of recognition and enforcement are within the jurisdiction of national courts—see the New York
Convention (n 2) art V.
24 UNCITRAL Model Law (n 2) art 16; English Arbitration Act 1996, s 30; the Alternative Dispute
Resolution Act 2010 (Act 798) of Ghana, s 24; Scottish Arbitration Rules, Rule 19.
25 UNCITRAL Model Law (n 2) art 16(3).
26 In Egerton v Brownlow (1853) 4 HLC 1, Parke B observed in relation to public policy as follows:
‘Public policy is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when
applied to the decision of legal rights; it is capable of being understood in different senses; it may, and
does, in its or- dinary sense, mean “political expedience”, or that which is best for the common good of
the community; and in that sense there may be every variety of opinion, according to education, habits,
talents, and dispo- sitions of each person, who is to decide whether an act is against public policy or
not ’
27 P Sanders (ed), Comparative Arbitration Practice and Public Policy in Arbitration (ICCA Congress Series,
1986 New York, Kluwer Law International 1987) vol 3, 177–366 (the entire work of the Working
Group 2 was devoted to public policy in Arbitration); Mistelis and Brekoulakis (n 1). See also
ILA, Interim Report on Public Policy as a bar to the Enforcement of International Arbitral Awards,
International Law Association Conference (2000) Report of the Sixty-Ninth Conference, London, 2000
(available from the
International Law Association) and in pdf format at <http://www.ila-hq.org/download.cfm/docid/
 Arbitrability and public policy ● 9
E723662E-053C-415A-A4C7822577AE6B4F> accessed 19 August 2016.
28 Richardson v Mellish (1824) 2 Bing 229 at 252 per Burrough J.
10 ● Arbitrability and public policy

International Arbitration of the International Law Association (ILA) dated 2000 on

the role of public policy in the enforcement of foreign arbitral awards examined
a number of possible definitions and explanations of the concept.29 It also
explored current strands and ramifications of the concept for international
arbitration.30 At its core, public policy is about ‘basic norms of morality and
justice’31 of a state the viola- tion of which ‘would be clearly injurious to the public
good or, possibly ... would be wholly offensive to the ordinary reasonable and
fully informed member[s] of the public on whose behalf the powers of the State
are exercised’.32 In the context of in- ternational arbitration, there are different
notions of the concept.33
Studies in America34 and Europe35 on current trends on arbitrability reveal
that there is a shift in attitudes on, first, the scope of disputes that are arbitrable

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and sec- ondly, the extent to which public policy remains a bar. Across Europe
and America, certain disputes are regarded as generally non-arbitrable. These include
criminal mat- ters and status-related cases involving individuals or corporate
entities.36 Disputes re- lating to fraud allegations,37 bribery,38 and competition39
(obviously issues of public interest) have in recent times encountered questions
on arbitrability.40 These types of disputes and others relating to patents, family
law, employment, and insolvency

29 See, eg The German Bundesgerichtshof 12 July 1990 - III ZR 174/89, NJW 1990 at 3210: ‘A violation of es-
sential principles of German law (ordre public) exists only if the arbitral award contravenes a rule which is
basic to public or commercial life, or if it contradicts the German idea of justice in a fundamental way. A
mere violation of the substantive or procedural law applied by the arbitral tribunal is not sufficient to
con- stitute such violation’; PM North and JJ Fawcett, Cheshire and North’s Private International Law
(13th edn, OUP 1999) 123: ‘.. .some moral, social or economic principle so sacrosanct .. . as to
require its maintenance at all costs and without exception’; and Julian D Lew, Applicable Law in
International Commercial Arbitration (Oceana 1978), 532: ‘.. .the fundamental economic, legal, moral,
political, reli- gious and social standards of every State or extra-national community .. . those
principles and standards which are so sacrosanct as to require their maintenance at all costs and
without exception’.
30 See ILA Report on Public Policy (n 27).
31 Parsons & Whittemore Overseas Co, Inc -v- Soci´et´e G´en´erale de l’Industrie du Papier RAKTA and Bank
of America 508 F 2d 969 (2nd Cir, 1974) per Judge Smith.
32 Deutsche Schachtbau-und Tiefbohrgesellscaft mbh -v- Ras Al Khaimah National Oil Company[1987] 2
Lloyd’s Rep 246, 254 per Donaldson MR.
33 Public policy in the context of municipal law, public policy under private international law (also called
in- ternational public policy) and trans-national public policy. For more details on these strands of
the con- cept, see P Lalive, ‘Transnational (or Truly International) Public Policy and International
Arbitration’ in Sanders (n 27) 258–318.
34 McLaughlin (n 4); Vincent (n 18) 141–68.
35 See Kirry (n 4); PM Baron and S Liniger, ‘A Second Look at Arbitrability: Approaches to arbitration
in the United States, Switzerland and Germany’ (2003) 19(1) Arb Int’l 27ff.
36 For example, the French Civil Code, art 2060.
37 See the decision in Fiona Trust & Holding Corp v Privalov Also known as: Premium Nafta Products Ltd
v Fili Shipping Co Ltd [2007] UKHL 40; [2007] Bus LR 1719, 1725ff.
38 See Honeywell International Middle East Limited v Meydan Group LLC [2014] 2 Lloyds Rep133 (it
was held that an allegation that an agreement was procured by bribery, even when proved, will not lead
to the setting aside of an order for the enforcement of a foreign award, though contrary to English public
policy because contract procured by bribes were not unenforceable under English law. See also M
Parish (2010) ‘The Proper Law of an Arbitration Agreement’ (2010) 76(4) Arbitration 661–79.
39 In Eco-Swiss China Time Limited v Benetton International NV (Case C-126/97) 1999 ECR1ff, an award
that was in violation of European Union competition law (art 81 EC) was annulled on the basis that
the law constituted a fundamental provision essential to the working of the Community, especially, the
func- tioning of the internal market.
 Arbitrability and public policy ● 11
40 Blackaby and others (n 3) paras 2.117–2.143.
12 ● Arbitrability and public policy

previously regarded as non-arbitrable are increasingly becoming arbitrable. In

the USA, there is a strong presumption in favour of arbitrability41 rebuttable only
by a clear congressional intent against submitting particular disputes to
arbitration;42 and the presumption is even stronger with disputes arising out of
international com- merce.43 The English courts have also endorsed presumption
of arbitrability. In Fiona Trust & Holding Corporation and Others v Privalov and
Others,44 the English Supreme Court (per Lord Hoffmann) observed as follows:

In my opinion the construction of an arbitration clause should start from

the assumption that the parties, as rational businessmen, are likely to have
in- tended any dispute arising out of the relationship into which they have
entered or purported to enter to be decided by the same tribunal. The

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clause should be construed in accordance with this presumption unless the
language makes it clear that certain questions were intended to be
excluded from the arbitra- tor’s jurisdiction.45

There are instances where courts have held in some European jurisdictions that
par- ticular types of dispute are not arbitrable46 but generally, the scope of
arbitrable mat- ters has widened considerably, partly as a result of the gradual
chipping away of the influence of public policy on what may be submitted to
arbitration.47
Historically, public policy has been a key consideration in the determination
of arbitrability.48 In America and Europe, the last three decades have witnessed
a re- markable reversal of this trend through judicial pronouncements on
arbitrability of public policy issues.49 The traditional position precluding
arbitrators from dealing

41 Moses Cone Memorial Hospital v Mercury Construction Corporation 460 US 1, 24–25 (1983); McLaughlin
(n 4) 906–7.
42 Vincent (n 18) 143.
43 See Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc 473 US 614 S Ct (1985) (the US
Supreme Court held that a dispute is arbitrable even though the transaction concerned raised issues
concerning vi- olation of an American Statute on antitrust; McLaughlin (n 4) 906–7.
44 [2007] UKHL 40; [2007] Bus LR 1719.
45 ibid 1725, para 13.
46 In relation to disputes involving rights that the parties are not free to dispose—see Fincantieri-
Cantieri Navali Italiani v Ministry of Defense (1994) 21 YB Comm Arb 594. See also Eco-Swiss China
Time Limited (n 39); Manfredi, Cannito, Tricorico & Murgolo v Lloyd Adriatico Assicurazioni SpA,
Fondiaria Sai SpA & Assitalia SpA C-295-98/04 [2006] ECR 1, 31 (where it was held that
compliance and application of arts 81 and 82 of EC law on competition was a matter of public
policy; UAB Kauno vandenys v WTE Wassertechnik GmbH (3K-7-304/2011) (where the Supreme
Court of Lithuania held that disputes arising out of public procurement contracts are not arbitrable—for
more on this case, see R Daujotas and others, ‘Arbitrability of Disputes Arising from Public
Procurement Contracts – Lithuanian Example’ (2012)
<http://dx.doi.org/10.2139/ssrn.2086349> accessed 12 August 2015.
47 SL Brekoulakis, ‘On Arbitrability: Persisting Misconceptions and New Areas of Concern’ in Mistelis
and Brekoulakis (n 1) 19–44.
48 For example, the Arbitration Act 2005 (Malaysia), s 4 (1) (‘any dispute which the parties have agreed to
submit to arbitration under an arbitration agreement may be determined by arbitration unless the
arbitration agreement is contrary to public policy’); the International Arbitration Act 1996
(Singapore), art 11; the French Civil Code 2060. See also McLaughlin (n 4) 915–6; Bo¨ckstiegel (n 13);
Baron and Liniger (n 35); cf SL Brekoulakis (n 47) who argues that public policy has no role in the
determination of arbitrability.
 Arbitrability and public policy ● 13
49 Examples from the USA: Moses Cone Memorial Hospital v Mercury Construction Corporation 460 US 1,
24–25 (1983); Mitsubishi Motors Corp v Soler Chrysler Plymouth Inc 473 US 614 S Ct (1985); Scherk
v
14 ● Arbitrability and public policy

with public policy disputes has now given way to a view that the application of
public policy rules should not be the sole preserve of judges, arbitrators can do
the same. Nevertheless, even with countries in Europe where it is thought that the
role of pub- lic policy in the determination of arbitrability is waning, it can be
argued that public policy considerations still underpin either overtly or covertly
some provisions on non-arbitrability.50

4. TRENDS IN AFRICA
Developments on arbitrability and non-arbitrability in Africa can be gleaned
mainly from national legislations, the limited case law on the subject and legal
writings. In this study, the arbitration laws of 36 countries in Africa were
explored for informa- tion on the varied legislative approaches towards regulating

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the issue of arbitrability, subject matters that are arbitrable or non-arbitrable, and
the extent to which public policy still remains an important consideration. Where
relevant judicial authority ex- ists, this is discussed together with the relevant
legislative provision.

4.1 Approaches to arbitrability

Growing influence of international arbitration as a means of resolving international
commercial and investment disputes has made it imperative for African
legislatures to take note. Current legislations across the continent reflect common
acceptance of arbitration as a means of resolving both domestic and international
disputes. Some judicial decisions from the continent confirm this position on
arbitration.51 There is a strong indication from a number of recent judicial
pronouncements on arbitration, party autonomy, and the right of the courts to
interfere in the arbitration process in South Africa that generally, the courts will
look favourably at arbitration and arbitral awards whether domestic or foreign.52
In Karen Maritime Limited v Omar International, Inc,53 the Liberian Supreme
Court opined that public policy of the country favours arbitration.
Asante54 has observed that the acceptance of international arbitration has
been mainly driven by a desire to attract investment and trade. He argues that,

Alberto-Culver Co 417 US 515–21. From the UK: Fiona Trust (n 44); Honeywell International Middle East
Limited (n 38). See also S Brekoulakis, ‘On Arbitrability: Persisting Misconceptions and New Areas
of Concern’ in LA Mistelis and SL Brekoulakis (eds) Arbitrability: International and Comparative
Perspectives (Kluwer Law International 2009)19,20.
50 See the French Civil Code, 1804, art 2060; the Code of Civil Procedure of the Netherlands, 1986,
art 1020(3); the Italian Civil Procedure Code, 1990 (as amended in 2006), art 806, etc.
51 See the Liberian Supreme Court cases of Emirates Trading Agency Company v Global Africa Import
& Export Company [2004] LRSC 18; Chicri Brothers v Isuzu Motors Overseas Distribution Corporation
[2000] LRSC 13 and the South African case of Telcordia Technologies Inc v Telkom SA Ltd 2007
(3) SA 266 (SCA) para 4.
52 Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA) para 4; Lufuno Mphaphuli
and Associates (Pty) Ltd v Andrews & another 2009 (4) SA 529 (CC) and Zhongji Construction v
Kamoto Copper Company (421/13) [2014] ZASCA 160. In Telcordia Technologies Inc v Telkom
SA Ltd, the South African Supreme Court of Appeal observed that giving due deference to arbitral
awards is a long standing practice of the courts dating back to the early nineteenth century.
53 [2004] LRSC 19.
54 SKB Asante, ‘Some Key Issues in Negotiating International Joint Ventures’ (1998) 1(1) Banking and
Financial Law Journal of Ghana 52.
 Arbitrability and public policy ● 15

.. .most developing countries involved in negotiating international

business transactions recognise the virtual inevitability of international
commercial arbi- tration. Indeed, the acceptance of international arbitration
has become an in- variable ingredient of the liberalization package which
developing countries provide as a sine qua non of their strategies to attract
foreign investment, tech- nology, international finance and foreign trade.55

Notwithstanding the common acceptance of arbitration as a means of resolving dis-

putes, arbitration laws on the continent reveal deep theoretical divisions in the
approaches to regulation of international arbitration. There is a view that all arbitra-
tions are, in a sense, national in character and governed principally by the
proce- dural rules of the seat of the arbitration. 56 In that sense, there appears to

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be no justification for making one set of rules for domestic arbitration and
another for in- ternational arbitration. Principles deemed beneficial to
international arbitration must be equally beneficial to domestic arbitrations. A
typical example of arbitration laws that reflect this view is the Alternative
Dispute Resolution Act 2010 of Ghana.57 Another view argues that international
arbitration is distinct from domes- tic arbitration and thus requires separate
rules.58 There is a recognition that the va- lidity and effectiveness of
international arbitration does not depend solely on domestic laws of a single
jurisdiction.59 Having separate provisions on international arbitration based on
well known and widely accepted principles such as those un- der the
UNCITRAL Model Law gives assurance of validity and effectiveness of an
award and also inspires confidence in foreign parties.60 Majority of modern arbitra-
tion laws in Africa tend to take the middle ground for reasons including the
need for investment and trade61 and recognition of the peculiarities of
international arbi- tration. Consequently, they tend to have separate provisions on
domestic and inter- national arbitration (all in a single legal document) with
varying differences in the extent of regulation.
The differences in approach to regulation of arbitration are also mirrored in how
the question of arbitrability is addressed. Asouzu 62 identified three different
approaches to arbitrability in the African context. The first approach entails
omitting any reference to the word ‘commercial’ as a means of limiting subject
matters that are

55 ibid 52–71.
56 See the ‘mono-localization’ theory of arbitration canvassed by FA Mann, ‘“Lex Facit Arbitrum”,
in International Arbitration’ (1986) 2 Arb Int’ 241 and captured succinctly in E Gaillard, ‘Three
Philosophies of International Arbitration’ in Arthur Rovine (ed) Contemporary Issues in International
Arbitration and Mediation (The Fordham Papers, Martinus Nijhoff Publishers 2010) 305, 308.
57 The Alternative Dispute Resolution Act 2010 (Ghana) applies to both domestic and international arbitra-
tion but refrains from any indication of a distinction between principles applicable to each type of
arbitra- tion. See also Liberia Commercial Code Title ch 7 (2010).
58 The view here is closer to that of proponents of the trans-national theory of arbitration—see E
Gaillard (n 56).
59 ibid.
60 The International Arbitration Act 2008 Act No 37 of 2008 (Mauritius) is a typical example of arbitration
law reflecting this view.
61 Asante (n 54).
62 AA Asouzu, International Commercial Arbitration and African States: Practice, Participation, and Institutional
Development (CUP 2001) 140–76.
16 ● Arbitrability and public policy

arbitrable.63 Instead, customized criteria are provided which cover a wider

scope.64 The second approach involves providing a specific and comprehensive
definition of ar- bitrable subject matters based on the indicative scope of the word
‘commercial’ given under the UNCITRAL Model Law.65 For example, the
Arbitration and Conciliation Act, 1988 (CAP 19) of Nigeria aim to ‘provide a
unified legal framework for fair and efficient settlement of commercial disputes by
arbitration and conciliation.. .’.66 Section 57 of the Act then defines what kinds of
transactions are ‘commercial’ in nature.67 The third approach to arbitrability
canvassed by Asouzu entails providing general defini- tions of subject matters that
are arbitrable without any limitations.
The distinctiveness of the various approaches to arbitrability runs deeper
than merely sticking to the scope provided under the UNCITRAL Model law or

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having a customized scope; it has theoretical connotations. Generally, arbitration
laws with stronger emphasis on international arbitration take a liberal view of
arbitrability and have limited or hardly any express provisions on non-
arbitrability.68 This is because international arbitration is often limited to subject
matters that are commercial in character which are largely arbitrable across the
African continent even at the domes- tic level. The International Arbitration Act
200869 of Mauritius is an example of standalone legislations on international
arbitration with a liberal position on arbitra- bility.70 The Act provides virtually no
limits on arbitrable disputes. It states that where jurisdiction is conferred on a
court concerning a matter, it does not necessarily imply that such a matter is
incapable of settlement by arbitration. In effect, matters over which the courts
have jurisdiction can equally be the subject matter of arbitra- tion, unless
expressly exempted.
Though the L’Organisation pour l’Harmonisation en Afrique du Droit des
Affaires (OHADA)71 Uniform Act on Arbitration Law, 1999 (OHADA
Uniform Act) has a domestic application, it is essentially international in
character. It has a strong international focus and applies common rules to all
arbitrations that have their

63 cf UNCITRAL Model Law (n 2) art 1(1) where it is stated that the law applies to international
commer- cial arbitration. An indication of the scope of the word ‘commercial’ is provided in the
footnote to the article.
64 Examples of this approach can be found in Law No 27/1994 of Egypt and the Tunisian Arbitration Code
(Law No 93-42 of 26 April 1993).
65 UNCITRAL Model Law (n 2) art 1(1)
66 Emphasis added. See the long title of the Act
67 s 57 of the Act define the word ‘commercial’ as ‘all relationships of a commercial nature including
any trade transaction for the supply or exchange of goods or services, distribution agreement,
commercial rep- resentation or agency, factoring, leasing, construction of works, constructing,
engineering licensing, in- vestment, financing, banking, insurance, exploitation, agreement or
concession, joint venture and other forms of industrial or business co-operation, carriage of goods or
passengers by air, sea, rail, or road’
68 The 1997 Draft International Arbitration Law of South Africa is an exception here. Under the
proposed s 6, matters relating to status and arbitration agreements contrary to public policy were to
be non- arbitrable.
69 Act No 37.
70 The long title of the Act states that it is ‘[a]n Act to promote the use of Mauritius as a jurisdiction
of choice in the field of international arbitration, to lay down the rules applicable to such arbitrations and
 Arbitrability and public policy ● 17
to provide for related matters’. S 3(1)(c) (i) states that its provisions apply solely to international
arbitration with a minor exception
71 The organization for the Harmonization of Business laws in Africa.
18 ● Arbitrability and public policy

seats in any of the sixteen signatory countries.72 It has as its goal harmonization of ar-
bitration laws in member states and therefore abhors any act which can
potentially stifle this effort. Under the Uniform Act, states and public entities are
permitted to arbitrate their disputes and are barred from invoking ‘their own law
to contest the arbitrability of the claim, their authority to sign arbitration
agreements or the validity of the arbitration agreement’.73 With the strong
international focus, it is not a sur- prise that the OHADA Uniform Act has little
or no tolerance for national laws on arbitrability.
Similarly, arbitration laws that are less emphatic on separate rules for international
arbitration have more elaborated provisions on non-arbitrability.74 Arbitration laws
with distinct provisions on domestic and international arbitration tend to provide
for arbitrability, non-arbitrability, or both.75 It is instructive that for most of these

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laws, arbitrability and non-arbitrability are covered under provisions applicable mainly
to do- mestic arbitration.76 In some other instances, the non-arbitrability provisions
are part of the common clauses applicable to both domestic and international
arbitration.77

4.2 Non-arbitrable disputes

Across the continent, there are many disputes that are non-arbitrable. These can
be categorized into, at least, four groups namely disputes on status and capacity-
related issues, disputes relating to protected persons and institutions such as the
family, dis- putes affecting subject matters that relate to the state or public
interest and disputes falling into the category herein referred to as ‘generic
exemptions’. Two categories of disputes come under the first group of non-
arbitrable matters namely status-related disputes (that is, disputes about the legal
personality of a person, natural or artifi- cial)78 and capacity-related disputes (that
is, disputes about a person’s capacity to ac- quire rights and obligations). In many
African countries, disputes relating to status and capacity are generally
exempted from the scope of arbitration.79 For instance, under the Tunisian
Arbitration Code80 disputes relating to nationality and personal status are not
arbitrable. Similarly, disputes concerning status are not arbitrable under

72 List of signatories: Togo, Cote d’Ivoire, Mali, Cameroun, Niger, Guinea Bissau, Equatorial
Guinea, Senegal, Burkina Faso, Democratic Republic of Congo, Gabon, Guinea, Chad, Central
African Republic, Benin, and Comoros.
73 See the OHADA Uniform Act 1999, art 2.
74 See, eg the Alternative Dispute Resolution Act 2010 (Ghana); Liberia Commercial Code Title ch 7
(2010), art 7.
75 Law No 27/1994 Promulgating the Law Concerning Arbitration in Civil and Commercial
Matters(Egypt), arts 1,2,and 11; Law No 05/08 Relating to Arbitration and Mediation Agreements
(Morocco), arts 308–310; Law No 11/99 of 8 July1999 (Mozambique), arts 5–6.
76 ibid.
77 Tunisian Arbitration Code (Law No 93-42 of 26 April 1993), art 7; Arbitration Act No 19 of 2000
(Zambia),s 6; Arbitration Act (ch 7:15; Act 6 of 1996) (Zimbabwe), s 4.
78 Disputes relating to whether a person is a minor, married, unmarried, divorced, non compos mentis or a cit-
izen of a country fall under the first category.
79 See, eg the Arbitration Act, ch 6.01, 1959 of Botswana, s 7; Law No 05/08 of Morocco Relating to
Arbitration and Mediation Agreements, art 309; South African Arbitration Act 42 of 1965,s 2;
Tunisian Arbitration Code (Law No 93-42 of 26 April 1993), art 7; Arbitration Act of Zambia
[No19 of 2000], s 6(2)(g); and Law No 11/99 of Mozambique, art 6(2).
80 Law No 93-42 of 26 April 1993.
 Arbitrability and public policy ● 19

the South African Arbitration Act.81 In the South African case of Grobbelaar v
De Villiers82 it was held that the question as to whether some corporate entity has
acted ultra vires its constitution is a matter relating to status. The position of the
court in the preceding case has been streamlined in a relatively recent case 83 by
another South African court looking at a similar issue within the context of
section 2 of the South African Arbitration Act. It held that matters relating to
status under the Act cover the existence and nature of a juristic person and the
question whether it has the capacity to acquire rights and incur obligations.
Disputes relating to these issues are generally not arbitrable under South African
law. Article 309 of the Arbitration law of Morocco84 provides that, ‘disputes
relating to status of a person, their capacity or personal rights that cannot be a subject
matter of commerce’85 are non-arbitrable. As with the situation in South Africa, both

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disputes on whether a person has a requisite legal personality and those relating to
capacity to acquire rights and obligations are non-arbitrable in Morocco.86
Similarly, Article 3326 (1) of the Ethiopian Civil Code provides that ‘the
capacity to dispose of a right without consideration shall be re- quired for the
submission to arbitration of a dispute concerning such right’.87 The question
remains as to what happens when an arbitrator encounters a question on status
in the course of the arbitration process. It appears that in such a case, the tribu- nal
may be obliged to refer such an issue to the appropriate court for determination.
The second category of disputes incapable of settlement by arbitration includes
those involving protected persons88 and the family as an institution. Section 7 of
the Arbitration Act of Botswana, 1959 exempt matrimonial causes 89 and matters
in which persons with legal incapacity may be interested from the scope of subject
mat- ters that are arbitrable. Section 6(2) of the Zambian Arbitration Act, 2000,
also ex- empt from arbitration subject matters incidental to a matrimonial
cause,90 the determination of paternity, maternity or parentage and matters
affecting the interest of a minor or a person under legal incapacity.91
It is worth noting that not all arbitration laws in Africa exempt matrimonial
issues from settlement by arbitration. For example, under the Ethiopian Civil
Code,92

81 No 42 of 1965.
82 1984 (2) SA 649 (C).
83 Berg en Dal Estate (Incorporating Mountaindale Estate) Homeowners Association v Van Huyssteen No and
Others, Berg en Dal Estate (Incorporating Mountaindale Estate) Homeowners Association v Brunt and Another
(5418/05,787/2006) [2009] ZAWCHC 12 (20 February 2009).
84 Law No 05/08.
85 Emphasis added.
86 A question arises here as to what happens when an issue of capacity is raised in the course of arbitration.
The rationale for precluding an arbitral tribunal from determining a question of capacity in the context of
a commercial matter is unclear in the absence of a judicial interpretation.
87 See also the Law No 27/1994 of Egypt, art 11; the International Arbitration Code of Djibouti, 1984,
art 2(2); and the OHADA Uniform Act on Arbitration, 1999, art 2.
88 Such as minors, persons with legal disabilities generally and consumers.
89 See also the Namibian Arbitration Act 42 of 1965, s 2 and the Zimbabwean Arbitration Act, 1996, s 4. cf
The Ethiopian Civil Code, Title XX (Compromise and Arbitral Submission) ch 2, art 722ff which states
that conflicts in cases relating to marriages, divorces and irregular unions are arbitrable.
90 Save where there is a leave of court to refer such matters to arbitration.
91 Unless the minor or the person with legal incapacity is represented by a competent person - See
s 6(2) (g).
92 Title XX (Compromise and Arbitral Submission) ch 2, art 722ff.
20 ● Arbitrability and public policy

conflicts in cases relating to marriages, divorces, and irregular unions are

arbitrable. Further, some statutes do not provide a blanket exemption of matters
involving the interests of minors or persons with limited or no legal capacity from
arbitration. For instance, under the Zambia Arbitration Act, a matter affecting the
interest of a person under some legal incapacity will be arbitrable if the person is
represented by a com- petent person.93 Similarly, the Zimbabwe Arbitration Act
permits such matters to be settled by arbitration with leave of the High court.94
Again, there are generally no blanket exemptions on consumer, bankruptcy, and
related commercial transactions. Section 38 of the Kenyan Arbitration Act, 1995,
is deliberately designed to ensure that where necessary, bankruptcy proceedings
could be settled by arbitration.95 Section 8 of the International Arbitration Act of
Mauritius places some additional re- quirements on parties to consumer

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arbitrations thereby making the arbitrability of such matters contingent on
compliance with such requirement.96 These ‘partial’ ex- emptions are indications
that these exempted matters could be arbitrable when cer- tain public interest
concerns are properly addressed. In this sense, these African arbitration statutes
are as liberal as the prevailing practice in Europe and America on similar subject
matters.
The third category of non-arbitrable matters relate to the State and public inter-
ests matters. Examples of these subject matters could be found under various arbitra-
tion legislations in Africa. For instance, section 1 of the Alternative Dispute
Resolution Act, 2010 (Act 798) of Ghana states that the Act applies to all matters ex-
cept those that relate to ‘(a) the national or public interest; (b) the environment;
(c) the enforcement and interpretation of the Constitution; or (d) any other matter
that by law cannot be settled by an alternative dispute resolution method.’97 The
Liberia Commercial Code contains similar provisions. It states that the chapter of
the code on arbitration does not apply to matters ‘involving the determination of
liability for the commission of a crime,98 a tort, environmental pollution or
matters relating to the public interest or the Constitution’.99
Compared with earlier categories of non-arbitrable subject matters in the
African context, this category poses a greater challenge because it entails matters
which are less specific in scope and have the greatest potential to influence
commercial transac- tions. Further, disputes in this category tend to fall within the
class of disputes which cannot be ‘compromised lawfully by way of accord and
satisfaction’.100 Such disputes

93 The Zambia Arbitration Act, 2000, s 6 (2) (g).

94 The Zimbabwe Arbitration Act,1996, s 4(2)(e).
95 See also the Arbitration Act of Malawi,1967, s 5.
96 See the International Arbitration Act (of Mauritius) No 37 of 2008, s 8 (1), which provides as
follows: where a contract contains an arbitration agreement and a person enters into that contract as a
consumer, the arbitration agreement shall be enforceable against the consumer only if the
consumer, by separate written agreement entered into after the dispute has arisen, certifies that,
having read and understood the arbitration agreement, he agrees to be bound by it.
97 For a discussion of the implications of this section, see Mante and Ndekugri (n 8) 31.
98 See also the Zimbabwe Arbitration Act, 1996, s 4(2)(c); Botswana Arbitration Act,1959,s 7 clarifies the
aspect of criminal matters that remain outwith the scope of arbitration by providing that, ‘criminal
cases, so far as the prosecution or punishment thereof is concerned, shall not be submitted to
arbitration.’
99 Ch 7 (2010), art 7.2 (3).
100 Halsbury’s Laws of England 4th Edition, para 503, 256. Examples of such disputes include criminal of-
 Arbitrability and public policy ● 21
fences, illegal contracts, agreements on gaming and wagering and status-related disputes. This position
22 ● Arbitrability and public policy

are generally not arbitrable in the African context. Two cases from Nigeria
illustrate this fact. In Federal Inland Revenue Service v Nigerian National Petroleum
Corporation & 2 Ors,101 an arbitral award was set aside on the ground that a
dispute on interpre- tation and application of a number of tax and tax-related
legislations102 was not arbi- trable. Subsequently, the Court of Appeal had the
opportunity to make a definite pronouncement on this principle in the case of
Statoil (Nig) Ltd v Nigerian National Petroleum Corporation103 but was less
specific on the issue of arbitrability. In this case, one of the questions which the
court had to address was whether disputes aris- ing from the Petroleum Profit Tax
Act and other tax legislations could be the subject matter of arbitration. Even as
the court emphasized the importance of party auton- omy and choice, it also
observed that under the relevant laws of Nigeria, especially sections 34 and 35 of

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the Arbitration and Conciliation Act, 1988 (as amended), not every dispute can
be the subject matter of arbitration agreement especially if such a move will
violate the Constitution or a legislation.
As states and public entities increasingly become involved in international eco-
nomic transactions, the question remains as to the extent to which matters
relating to public or national interest could remain outside the scope of
arbitrable matters; this is especially so since states are themselves parties to
transactions that incorporate arbitration as means of dispute resolution.104 Drawing a
line in such matters poses a difficulty. Can a dispute arising out of a transaction
involving a state and a private en- tity over the refurbishment of a power barge at a
time when a country is experiencing power crisis constitute a matter relating to
public or national interest?105 Will such a matter be arbitrable?106 Then there is
the issue of the scope of matters relating to constitutional interpretation and
enforcement.107 If a dispute arises in the context of a commercial transaction as to
whether there has been a breach of a constitutional provision,108 can such a
dispute be resolved by arbitration, for instance, under the Ghana Alternative
Dispute Resolution (ADR) Act?109 Assuming that an international arbitral tribunal
makes an award in this matter; can the enforcement of the award in

of the law on arbitrability was quoted with approval by the Supreme Court of Nigeria in the case of
Kano State Urban Development Board v Fanz Construction Co (1990) 4 NWLR (pt 142) 1.
101 Suit No FHC/CS/774/2011.
102 Petroleum Profit Tax Act, the Deep Offshore Act, Education Tax Act and Company Income Tax
Act (Nigeria).
103 (2013) 14 NWLR (pt 1373).
104 Mante and Ndekugri (n 8) 31,36–7.
105 ibid.
106 This is a real story involving an African country and currently the subject matter of international
arbitra- tion. So the answer to this question is yes.
107 This is examined in detail under the section on arbitrability and public policy in Africa below.
108 For example, where an agreement which is the subject matter of a dispute is alleged not to have
com- plied with a constitutional requirement to obtain legislative approval—art 181(5) of the
1992 Constitution of Ghana requires that international business and economic transactions to which the
gov- ernment is a party should receive parliamentary approval.
109 In the Ghanaian case of A-G v Balkan Energy (Ghana) Limited & Ors (the Balkan Energy Case) [2012]
2 SCGLR 998, the Supreme Court declared an international transaction unconstitutional as it
failed to comply with the requirements of art 181(5) of the 1992 Constitution of Ghana. In the
meantime, dis- putes arising under this international transaction are the subject matter of international
arbitration. It re- mains to be seen how the Supreme Court’s pronouncement on the effect of the
constitutional violation on the transaction will be treated by the arbitral tribunal.
 Arbitrability and public policy ● 23

Ghana be challenged on the basis of non-arbitrability under Article V of the

New York Convention?110
Even more nebulous are the matters that come under the category called
‘generic exemptions’. The challenge posed by this category is essentially a
question of lati- tude. There are significant numbers of arbitration laws which
employ generic phrases to classify arbitrability. The OHADA Uniform Act, like
many other arbitration legis- lations deriving from the civil law tradition, provides
that natural persons and corpo- rate bodies can submit to arbitration disputes on
rights of which they have free disposal.111 The Moroccan law on arbitration
provides that persons of the requisite capacity can conclude arbitration agreements
‘pertaining to rights under their free dis- posal.. .’.112 The Djibouti law on
international arbitration states that matters arising out of ‘juridical relationships as

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to which parties have the capacity to settle’ are arbi- trable.113 The difficulty with
these phrases is that subject matters within their scope are not readily
ascertainable. This is also the case for instances where generic phrases are used to
indicate non-arbitrability. Article 11 of the arbitration law of Egypt, 1994, provides
that arbitration is not permitted in matters ‘which cannot be subject to
compromise’. Under Morocco’s arbitration law, a personal right that cannot be
sub- ject matter of commerce is not arbitrable.114 Matters ‘that by special law shall be
sub- mitted exclusively to a judicial court.. .’ and ‘those that relate to inalienable or
non- negotiable rights’ are non-arbitrable under the law of Mozambique.115

4.3 Arbitrability and public policy in Africa

Unlike the situation in Europe and America, public policy still remains a critical
de- terminant of what is arbitrable in the African context. There are instances where
pub- lic policy is expressly made a criterion for non-arbitrability. For instance,
the arbitration laws of Tunisia,116 Zambia,117 and Zimbabwe118 stipulate that matters
of public policy are not arbitrable.119 In Lufuno Mphaphuli & Associates (Pty)
Ltd v Andrews and Another,120 Acting Deputy Chief Justice O’Regan, speaking for
the ma- jority on the South African Constitutional Court, observed as follows:

.. .as with other contracts, should the arbitration agreement contain a

provi- sion that is contrary to public policy in the light of the values of the
Constitution, the arbitration agreement will be null and void to that extent

110 Ghana is a signatory to the New York Convention and has incorporated provisions of the
Convention into its domestic law, the Alternative Dispute Resolution Act, 2010.
111 See the OHADA Uniform Act, 1999, art 2.
112 Emphasis added. See Law No 05/08 Relating to Arbitration and Mediation Agreements, art 308.
113 See the International Arbitration Code, 1984, art 2(2); see also Law No 27/1994 of Egypt, art 11.
114 Law No 05/08 Relating to Arbitration and Mediation Agreements, art 309.
115 Law No 11/99 of Mozambique, art 5(2)(a) and (b).
116 Tunisian Arbitration Code (Law No 93-42 of 26 April 1993), art 7(1).
117 Zambia’s Arbitration Act [No19 of 2000], s 6 (2) (a) provides that an agreement which is contrary to
public policy is not arbitrable.
118 Zimbabwe’s Arbitration Act, 1996, s 4(2)(a).
119 None of these laws defines public policy.
120 [2009] ZACC 6.
24 ● Arbitrability and public policy

(and whether any valid provisions remain will depend on the question of
severability).121

Where no express reference is made to public policy, the rationale for

exempting certain categories of disputes from arbitration still points to basic
morality and jus- tice. Given the importance of the family as a basic unit of
society and the vulner- abilities of minors and persons with legal disabilities, it
is understandable that matters relating to these categories are considered
deserving of the protection of the law.
Though difficult to define, principles which constitute public policy may fall into,
at least, four different categories namely mandatory laws,122 fundamental principles
of law, public order, or good morals and national interest.123 For African

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countries with constitutions, principles of law contained in these documents
constitute the fun- damental principles of law. 124 A violation of such principles is
considered inimical to the security and welfare of the state. Consequently, these
principles take precedence over all other laws. In a ruling on a matter involving a
violation of a provision of the current Constitution of Ghana in the course of an
international commercial transac- tion, the Supreme Court of Ghana speaking
through Date-Bah JSC observed as follows:

Thus, if even statute law is void, if in conflict with the Constitution, a

fortiori, contracts breaching the Constitution should not be enforced
This constitu-
tional provision, in my view, is a peremptory norm that has to be heeded by
this Court. To borrow from the language of public international law, it may be
viewed as analogous to ius cogens whose enforcement cannot be impeded by the
normal rules. This Court, to my mind, is thus entitled to refuse to award any
damages for the breach of what was an unconstitutional contract, even
though the ap- pellant has been adjudged to be in breach of it.125

121 ibid para 220.

122 These are laws which must be applied to both domestic and international transactions irrespective of
the governing law of the relevant transaction in view of their fundamental nature—see a more
expansive definition in P Mayer, ‘Mandatory Rules of Law in International Arbitration’, (1986) 2
Arb Int’l 274,
275. See also Bo¨ckstiegel (n 13) who argues that not all legal rules on arbitrability form part of the
pub- lic policy of a state.
123 See the Interim Report of the International Law Association (Committee on International
Commercial Arbitration) on Public policy, 2000, 15. Report of the Sixty-Ninth Conference, London,
2000 (available from the International Law Association) and in pdf format at <http://www.ila-
hq.org/download.cfm/ docid/E723662E-053C-415A-A4C7822577AE6B4F> accessed 19 August
2016.
124 See the Constitution of Ghana, 1992, art 1(2) where it is stated that the ‘Constitution shall be the su-
preme law of Ghana and any other law found to be inconsistent with any provision of this
Constitution shall, to the extent of the inconsistency, be void’; the Constitution of the Republic of
South Africa,1996 which identifies the supremacy of the constitution and the rule of law as values upon
which the country is founded—art 2 states that law or conduct inconsistent with it is invalid. The
Constitution of Kenya,2010 which identifies general principles of international law as part of Kenyan
law states as fol- lows: ‘(4) Any law, including customary law, that is inconsistent with this
Constitution is void to the ex- tent of the inconsistency, and any act or omission in contravention of
this Constitution is invalid’. See also the Constitution of the Federal Republic of Nigeria, 1999,
 Arbitrability and public policy ● 25
art 1(1) and (3).
125 Emphasis added. The Attorney-General v Faroe Atlantic Co Ltd [2005–2006] SCGLR 271 298.
26 ● Arbitrability and public policy

Disputes entailing violation of most constitutional provisions will fall within the cate-
gory of principles referred to as ‘fundamental principles of law’ and thus will
come under the scope of public policy. In the Kenyan case of Christ for all Nations
v Apollo Insurance Co Ltd,126 Rangera J defined public policy in the context of the
recognition and enforcement of a foreign award in Kenya as entailing any award that
is ‘inconsis- tent with the constitution or other laws of Kenya, whether written or
unwritten; or inimical to the national interest of Kenya; or contrary to justice
and morality’.127 Fundamental issues relating to national interest, public order
and good morals are generally considered sacrosanct and will qualify as matters
of public policy in the African context. On the issue of the application of public
policy in the context of ar- bitration, there is evidence that the courts are careful
to apply such principles spar- ingly and in clear cases, bearing in mind the

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uncertainty that frequent application of such principles could introduce to
commercial transactions.128 Again, there is some indication that the courts may
apply public policy restrictively in case of international awards.129

5. DISCUSSION
The position of African countries on arbitrability, to a large extent, reflects the
diver- gent legal systems on the continent. The 53 unique legal systems on the
continent have their roots in at least four distinct legal traditions namely, the
common law, civil law, customary law, and sharia law. These legal systems employ
different legislative approaches in dealing with the question of arbitrability and
non-arbitrability.130 Legal systems based on the civil law tradition tend to delineate
the boundaries of dis- putes that are arbitrable generally by reference to rights
which the parties have the capacity to dispose.131 In this regard, the approach to
arbitrability adopted by these legal systems is similar to that of most countries in
continental Europe.132 In the main, most commercial disputes are arbitrable in
Africa as is the case in Europe and America. Further, it appears most questions on
arbitrability are raised not at the ini- tial stages of the process of arbitration but
during a challenge of an award or the rec- ognition and enforcement of same.
Beyond these similarities, there are areas of divergence between Africa on one
hand and Europe and America on the other. Three of these differences are
briefly outlined. First, current issues on arbitrability in Africa differ considerably
from those

126 [2002]2EA 366.

127 See AO Nyanchoka, ‘The scope of Arbitrability under Kenyan Law’ (2013) 79(3) Arbitration 273–
8. See also the South African case of Cool Ideas 1186 CC v Anne Christine Hubbard and Another
where it was held that an arbitral award founded on illegality violates the public policy of South Africa
and thus will not be enforced.
128 See Botha, Now Griessel v Finanscredit (Ply) Ltd (3) SA (A) (1989) and Sasfin (Pty) Limited v Beukes
(1989) SA 1(A), 9A-B per Smalberger JA cited with approval in the context of Arbitration in
Amalgamated Clothing and Textile Union of South Africa v Veldspun (Pty) Limited [1993] ZASCA
158; 1994 (1) SA 162 (AD).
129 Seton Co v Silveroak Industries Ltd (2) SA 215 (T) (2000).
130 See Asouzu (n 62).
131 See the OHADA Uniform Act, 1999, art 2 and the Moroccan Law No 05/08 Relating to
Arbitration and Mediation Agreements, art 308.
132 France, the Netherlands, Italy, etc.
 Arbitrability and public policy ● 27

in Europe and America. In Africa, questions of arbitrability may arise in relation

to disputes concerning constitutional interpretation and enforcement, public or
national interests, crime, environmental issues, and public policy. In Europe and
America, cur- rent issues on arbitrability relate to disputes concerning patents and
trademarks, in- solvency, antitrust and competition laws, fraud and bribery, and
corruption. For instance, the general position on a transaction (which is the
subject matter of arbitra- tion) alleged to have as its object fraud or bribery and
corruption in Europe and America is that fraud will not deprive an arbitral
tribunal of the power to determine such a dispute; such an allegation, if proved
will have to be considered by the tribu- nal as part of its award.133 It is submitted
that this view is based, in part, on the belief that arbitrators are capable and have
the requisite training and general sense of duty to apply the relevant law taking into

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account the public interest or policy dimension of a matter. This may not be the
experience of many countries in Africa. For in- stance, in BJ Exports & Chemical
Processing Co v Kaduna Refining and Petrochemical Co,134 the Nigerian Court of
Appeal upheld the decision of the High Court revoking the authority of the
arbitrator and the arbitration agreement on the basis of fraud.
Secondly, the developments on arbitrability in Europe and America have been
largely driven by judicial interpretation, which has favoured the presumption of arbi-
trability.135 The story in Africa is different. Whilst there is evidence of growing juris-
prudence on the challenge of arbitral awards and the recognition and enforcement
of foreign awards, there has been comparatively little by way of judicial
decisions on arbitrability in relation to international arbitrations on the
continent. This may be due to the marginal opportunities available to African
courts to develop arbitration jurisprudence in this area.
The erosion of the concept of arbitrability in Europe and America has also
been on the basis of arguments exploring the real rationale of the concept of
arbitrability. It has been argued that the question of arbitrability has to do with the
natural limita- tions of arbitration as a dispute resolution mechanism of
consensual character.136 Using arbitration to determine third-party disputes or
matters of public nature will be in conflict with the very nature of the process.137
This rationale for arbitrability gives rise to the need for states to make decisions
on what disputes can justifiably be settled by arbitration. In making such
decisions, the question of the legitimacy of the process of arbitration and the role
of the arbitrator also arises. Unlike judges who are

133 Fiona Trust & Holding Corp v Privalov (n 37); On the United States, see Meadows Indemnity Co
v Baccala & Shop Ins Services, 760 F Supp 1036 (1991) where it was held that fraud is arbitrable. A similar
decision was made in the French case of Cour d’ Appeal de Paris, 29 March 1991, Ganz and Others
v Soc Nationale des Chemins defer Tunisiens REY ARB 478 (1991). See also Blackaby and others
(n 3) paras 2.133 –2.141.
134 31 October 2002 delivered by Mahmud Mohammed, Justice of the Court of Appeal, Court of
Appeal, Kaduna Division, Nigeria (unreported). See V Anusornsena, Arbitrability and Public Policy in
Regard to the Recognition and Enforcement of Arbitral Award in International Arbitration: the United
States, Europe, Africa, Middle East and Asia (Scientiae Juridicae Doctor (SJD) thesis , Golden Gate
University School of Law 2012) 33, 91.
135 See Moses Cone Memorial Hospital v Mercury Construction Corporation 460 US 1, 24–5
(1983); Mitsubishi Motors Corp v Soler Chrysler Plymouth Inc 473 US 614 S Ct 3346 (1985) (US
Supreme Court, 2 July 1985); Scherk v Alberto-Culver Co 417 US 515–21; Fiona Trust & Holding Corp v
Privalov (n 37).
136 Brekoulakis (n 49).
28 ● Arbitrability and public policy
137 KY Youssef, ‘The Death of Inarbitrability’ in Mistelis and Brekoulakis (n 49) 47.
 Arbitrability and public policy ● 29

formally appointed under law by the state to carry out judicial functions, arbitrators
are appointed by private individuals or entities and are not bound by law to
protect the public or the state against morally offensive and unjust actions or,
indeed, con- sider policy implications of their decisions.
These considerations (that is, the natural limitations of arbitration as a
consensual process and the legitimacy and role of the arbitrator) are among the
vital factors that may weigh on the mind of African law makers enacting laws on
arbitrability. Within the context of strong perception of bias against African
states involved in interna- tional arbitration138 and a misperception about the
competence and roles of arbitra- tors, there is a good reason why arbitrators may
not be accorded the same legitimacy that judges enjoy in Africa. Armfelt
captured the rationale for this argument in the following terms:

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International arbitration converts disputes with significant legal, regulatory and
policy dimensions into purely private contractual disagreements. Courts,
whose duty it is to administer justice pursuant to law and policy, are
replaced with private panels that often see their mission as merely to settle
disagree- ments in accordance with ‘general’ legal principles and
prevailing business practices that favour transnational corporations. This
type of private justice in- evitably ignores the legitimate regulatory interests
of concerned states.139

In this context, merely vouching for the neutrality of arbitrators or indeed

asserting that the procedures meet the requirements of due process will not be
sufficient. Consequently, arbitrability defined on the basis of public policy ultimately
becomes a safeguard of national interests. African states are hesitant to entrust
issues of public policy and national interest into the hands of arbitrators who may
serve different in- terests. The concept of arbitrability provides these states with
the opportunity to maintain control over important issues affecting their existence
and welfare through recourse to their respective judiciaries. The implication of the
foregoing argument is that the question of arbitrability has a contextual dimension
and this is often ignored in the discussion on the relationship between public
policy and the concept of arbitrability.

6. CONCLUSION
The concept of arbitrability is an enigma. In one sense, it appears insignificant
in view of the fact that commercial matters are generally arbitrable in many countries
in the world.140 In another sense, this conclusion leads to the question as to why
such an ‘insignificant’ concept still commands the attention of scholars and
engenders controversies both in academia141 and in practice. The significance of
the concept of arbitrability has been immortalized by Article V (2) (a) of
the New York

138 A Armfelt, ‘Avoiding the Arbitration Trap’ Financial Times (London, 27 October 1992) 20 cited in
Asouzu (n 62) 429.
139 Ibid.
140 Blackaby and others (n 3) para 2.144.
141 Mistelis and Brekoulakis (n 49).
30 ● Arbitrability and public policy

Convention. Similarly, Article 34(2) (a) (i) of the UNCITRAL Model Law has
been widely incorporated into many arbitration laws across the globe implying
that na- tional courts determining applications for recognition and enforcement
of foreign awards still have power to refuse enforcement on the basis that the
subject matter of the arbitration is not capable of settlement by arbitration in the
jurisdiction con- cerned. In effect, even if the concept of arbitrability does not
succeed in stopping the hand of a tribunal from determining a matter, it may end
up stifling the enforcement of its handiwork, the award.
Given the significance of the concept of arbitrability, it is vital that business
enti- ties involved in international transactions do not erroneously generalize
knowledge of what pertains in Europe and America across all jurisdictions and
regions of the world. In Africa, a number of trends on arbitrability are discernible.

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Most commercial disputes are generally arbitrable and this observation generally
aligns with practice in Europe and America. Beyond this, there are three significant
differences in the areas of scope of subject matter, approaches to arbitrability
regulation and the role of pub- lic policy. First, subject matters that are non-
arbitrable in Africa are comparatively broader in scope and differ in terms of
subject matters of interest. Commercial dis- putes may be embroiled with public
interest, constitutional interpretation, tort, or other non-arbitrable issues,
especially so when a state or a public body is a party to such a dispute.
Secondly, the approaches to regulating the question of arbitrability differ. Judicial
activism that has transformed the arbitrability ‘landscape’ in Europe and America are
generally absent or, at best, still emerging in Africa. Two trends are observable
from the legislative approaches adopted by African states. Generally, a distinction is
main- tained between domestic and international arbitration. Where there is
legislative em- phasis on international arbitration, issues of non-arbitrability are
generally muted. Even so, there is clear indication that many African countries
are unwilling to do away with rules on non-arbitrability in the context of
domestic arbitration, and in some cases, even in the context of international
arbitration. The rationale for this practice is linked to the third significant
difference between practice in Africa on one hand and Europe and America on the
other, namely the role of public policy in de- ciding what is non-arbitrable. Public
policy is considered a vital safeguard for many African countries against perceived
‘biased arbitral tribunals’ who may have as their main objective the satisfaction of
commercial interests. Thus, the determination of the question as to what is or is
not arbitrable does not depend solely on the natural boundaries or limitations of
arbitration but also a desire to safeguard national legal, institutional, and
economic interests. Could it be that the dirge of non-arbitrability has been sung
too soon?142

142 Youssef (n 137).