Towards a Transnational Legal Order: The Role of Culture in Commercial Arbitration in Africa

Abstract

International arbitration is gaining traction in Africa as an ideal method of dispute resolution for commercial disputes between parties from different jurisdictions. As crossborder commerce, trade and investment increases in the African continent, so does the potential of international arbitration. Although this is welcome economically, the convergence of culture creates unprecedented complexities when disputes arise. Although sometimes overlooked, culture plays a critical role in international arbitration as cases often involve parties from different countries. The author contextualizes commercial arbitration in a transnational legal order as arbitration is increasingly viewed as a transnational system of justice. This paper further explores the meaning of culture and analyzes the manner in which culture undergirds international arbitrations in Africa, given this transnational context. The author argues that cultural considerations must be taken into account in order for international arbitration to survive in the long run in Africa. This paper analyzes cultural issues such as political and religious considerations, cultural biases and stereotypes, communication and language issues, inter alia. Within this analysis, the author highlights measures that could be put in place to ensure that these cultural issues are considered in African-related arbitrations in order to contribute to the greater success of the arbitral process.