Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 16

AFRICA SPECIAL ISSUE
The Dutch Cape Colony in South Africa, administered by the Vereenigde
Oosindische Compagnie (VOC) left behind a legacy of Roman-Dutch law. Like the
French and British, the Dutch initially applied Roman-Dutch law to themselves,
but soon started applying it to the natives as well. Arbitration there was initially
based on the uncodified Roman-Dutch law principles, but gave way to an English
model of international arbitration when the provinces of the Cape of Good Hope,
Transvaal and Natal enacted their own arbitration laws, 23
influenced by the English
Arbitration Act 1889. 24
Later, in 1965, South Africa would introduce a single
arbitration act for the whole country, based on the English Arbitration Act 1950.
What did all this mean for dispute resolution and international arbitration in
Africa? Two observations about the status quo at independence are relevant for
our purposes. Firstly, by the time African countries became independent from
the British, French, and Belgians, the records of the substance and procedure
of customary law had been written by the newcomers, not by the natives. So,
much knowledge of practices akin to present-day arbitration could have been
lost or misinterpreted during the transition. Secondly, the regime for international
arbitration at independence, where it existed, was drawn from the colonial powers.
Where the regime was established soon after independence, it was also heavily
influenced by the colonial powers. It is useful to contrast former European colonies
with Liberia, which was established as a territory to resettle slaves in the eighteenth
century. There, arbitration was not recognised in the legal system until recently. 25
Records of commercial disputes decided by arbitration in Africa during the
eighteenth century are difficult to locate. Where they exist, they show that practice
of international arbitration in the colonies was influenced by practice in the home
countries. For example, in British colonies, lawyers and judges referred to case
law in England. 26
Yet, often separately from the commercial realm, a different
type of arbitration was already taking place with, often, more fanfare and higher
stakes - international arbitration between states related to African borders and
territories. These arbitrations were usually related to border and territorial disputes,
where arbitration had already been agreed as a mechanism for dispute settlement
in a treaty. The range of issues resolved by arbitration include a dispute about
the independence of Zanzibar from Oman, 27
South African Republic (Transvaal) and the Orange Free State in South Africa, 28
a border dispute between the United Kingdom and the South
a border delimitation between the
a
maritime delimitation between the United Kingdom and Portugal related to East
African territories, 29
23. Arbitration Act 29 of 1898 (Cape of Good Hope); Arbitration Ordinance 24 of 1904
(Transvaal); and Arbitration Act 24 of 1898 (Natal).
24. DP Rantsane, The Origin of Arbitration Law in South Africa, Potchefstroom Electronic Law
Journal, Vol. 23 No.1 (2020).
25. The regime for international arbitration in Liberia is contained in Chapter 64 of their Civil
Procedure Law.
26. See for example, A.V Roussous Ltd v CJ Valentine &Co. and C.J Valentine (Uganda) Ltd,
1968 (2) A.L.R. Comm. 178.
27. Arrangement for the Settlement of Differences between the Sultan of Muscat and the Sultan
of Zanzibar, and the Independence of their respective States, decision (2 April 1861).
28. Sentence arbitrale relative à la délimitation de la Frontiére entre la République Sud-Africaine
(Transvaal) et l'État libre d'Orange, 21 avril 1870, UNRIAA, Vol. XXVIII, pp. 125-130.
29. Sentence arbitrale relative aux requêtes de la Grande Bretagne et du Portugal sur Certains
territoires de la côte Est de l'Afrique appartenant autrefois aux Rois de Tembe et Mapoota, incluant
290
The Paris Journal of International Arbitration 2023‑2

Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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