A proposal for international arbitration law in Namibia based on the UNCITRAL Model Law on International Commercial Arbitration

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 259-279
• Author: Tapiwa Victor Warikandwa,Lineekela Usebiu
• Published date: 01 June 2023
• DOI: 10.17159/2225-7160/2023/v56a18

International arbitration law in Namibia based on the UNCITRAL Model Law 259

A proposal for international arbitration law

in Namibia based on the UNCITRAL Model

Law on International Commercial

Arbitration

Tap iwa Vict or War ik and wa

LLB LLM LLD

Senior Lecturer, School of Law, University of Namibia

Lineekela Usebiu

B Juris LLB LLM PDHE

Senior Lecturer, School of Law, University of Namibia, PhD Candidate (UCT)

SUMMARY

International business arbitration is not covered by Namibia’s present

arbitration law, the Arbitration Act 42 of 1965 (the Act). There is no explicit

language in the Act that addresses foreign arbitration as the Act, solely by

default, covers national or domestic arbitration. When it comes to

international arbitration, the Act has many flaws. Modern commercial

arbitrations are increasingly being guided by the Model Law on

International Commercial Arbitration (MLICA) of UNCITRAL (the United

Nations Commission on International Trade Law) or by state legislation

that has been influenced by it. It is undeniable that Namibia must embrace

MLICA, including the majority of the 2006 revisions of the MLICA, in order

to participate in the global economic village. Furthermore, Namibia has not

yet ratified the 1958-adopted New York Convention on the Recognition

and Enforcement of Foreign Arbitral Awards (CREFAA), which has been

hailed as the most effective treaty governing global trade. This article

suggests that Namibia should implement both the MLICA and the CREFAA.

If this strategy is not adopted, businesses in Namibia will be hesitant to

engage in international business transactions due to the lack of legal

certainty that the New York Convention and contemporary domestic

arbitration legislation bring.

Keyword s: commercial arbitration law, Arbitration Act 42 of 1965,

Namibia, International Commercial Arbitration

1Introduction

The recent growth in international commercial arbitrations has been

described as rapid and/or exponential.1 In African arbitration, a crucial

milestone has been reached. Africa-related commercial arbitration

disputes have long kept lawyers busy in traditional arbitration centres,

1 Rigby “The explosive growth of international arbitration” Commercial

Dispute Resolution, 22 August 2016 https://www.cdr-news.com/categories/

arbitration-and-adr/6643-the-explosive-growth-of-international-arbitration

(last accessed 2023-07-02).

How to cite: Warikandwa & Usebiu ‘A proposal for international arbitration law in Namibia based on the

UNCITRAL Model Law on International Commercial Arbitration’ 2023 De Jure Law Journal 259-279

http://dx.doi.org/10.17159/2225-7160/2023/v56a18

260 2023 De Jure Law Journal

but the market is shifting.2 As the continent’s number of arbitral centres

grows rapidly, African lawyers are developing specific arbitration abilities

to meet the demand.3 The major international arbitral centres, such as

those in China, Singapore, and Hong Kong, have provided statistical

evidence of the global growth of commercial arbitration in the world.4

One of the primary causes for the global development in commercial

arbitration has been linked to China’s thriving economy and/or

commercial growth.5 China’s economic expansion has led to the

dramatic growth of international trade and the number of trade disputes

handled through commercial arbitration.6 Arbitration is becoming

increasingly common as commercial conflicts become more common.

For example, in 2012, the Beijing Arbitration Commission heard 1473

new cases.7 In 2013, the Singapore International Arbitration Centre

received 259 new cases, representing a 62 per cent increase from 2009.8

In 2014, the Hong Kong International Arbitration Centre received 252

new cases, 93 per cent of which were of an international nature, a 36 per

cent increase from 2013.

9 Therefore, it is plausible to argue that the

major drivers of the growth in commercial arbitrations are: economic

growth and an increase in cross-border trade and commerce;

dissatisfaction with court litigation; and harmonisation of arbitration

laws and procedures.10 Harmonisation of arbitration laws has been

made possible by the following:

(a) The Convention on the Recognition and Enforcement of Foreign Arbitral

Awards agreed upon at the United Nations Conference on International

Commercial Arbitration held in 1958 in New York (hereinafter NY

Convention).11 The main aim of the NY Convention is to facilitate the

recognition and enforcement of foreign arbitration agreements and

awards in the same way as domestic arbitration agreements and awards;

2 Ostrove, Sanderson, Veronelli and Piper “Developments in African

Arbitration” 2018 https://globalarbitrationreview.com/review/the-middle-

eastern-and-african-arbitrationreview/2018/article/developments-in-african-

arbitration (last accessed 2023-07-02).

3As above.

4 Rigby “The explosive growth of international arbitration” Commercial

Dispute Resolution, 22 August 2016 https://www.cdr-news.com/categories/

arbitration-and-adr/6643-the-explosive-growth-of-international-arbitration

(last accessed 2023-07-02).

5As above.

6As above.

7As above.

8As above.

9As above.

10 As a bove.

11 The New York Convention (hereinafter referred to as the NY Convention)

was prepared and opened for signature on 10 June 1958 by the United

Nations Conference on International Commercial Arbitration, which was

convened in accordance with Economic and Social Council resolution 604

(XXI) adopted on 3 May 1956. The convention contributes significantly to

the improvement of the legal framework for international commerce by

developing international legislative texts for use by States in updating

international trade law, as well as non-legislative texts for use by

commercial parties in negotiating transactions.