RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN AFRICA: A COMPARATIVE ANALYSIS OF SOUTH AFRICA AND KENYA

Abstract. Arbitration has emerged as the preferred method for resolving cross-border commercial disputes, primarily due to the parties' desire for confidential proceedings and a mechanism to obtain an enforceable award efficiently. This article examines important aspects of the process of recognizing and enforcing foreign arbitral awards in various African jurisdictions, in particular South Africa and Kenya. The role of the New York Convention as a legal framework establishing the basis for the recognition and enforcement of foreign arbitral awards, as well as its main provisions, is deeply studied and analyzed. The grounds for refusal to recognize and enforce arbitral awards are considered in detail. Different countries have different rules and procedures for the recognition and enforcement of foreign arbitral awards. The article also analyzes practical challenges that may arise during enforcement proceedings in these jurisdictions.

Keywords: international commercial arbitration, arbitral awards, recognition and enforcement, New York Convention, UNCITRAL Model Law, Africa, South Africa, Kenya.

1. Introduction

As a method of dispute resolution, disputes across Africa are increasingly involving applications for recognition and enforcement of foreign judgments and arbitral awards. This trend is driven by the adoption of the UNCITRAL Model Law on International Arbitration and the New York Convention, signed by more than 38 African states. Cross-border commercial disputes now preferentially resolve through international arbitration [1]. Due to the New York Convention's clear legal framework, awards made by arbitral tribunals are binding on the parties to the dispute and must be enforced in the Contracting State where they are examined.

As for the concept of an arbitral award, there is no legal instrument that provides a clear definition. However, a general understanding of the key elements of arbitration can be obtained from the New York Convention: (1) The decision may be rendered by special or institutional courts (Article I (2)); (2) to enable the award to be arbitrated (Article II); and (3) the decision must meet certain minimum formal characteristics (Article IV) [2].

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter referred to as the "New York Convention"). Article I (1) of the New York Convention provides that the Convention applies to the recognition and enforcement of arbitral awards made in a state other than the one in which recognition and enforcement of those awards are sought.

Thus, it applies to non-national awards in the state where their recognition and enforcement are sought. The New York Convention (article 1) further provides that the dispute in respect of which an award has been made must be a dispute between different persons, whether natural or legal. While the New York Convention deals only with the recognition and enforcement of "foreign arbitral awards," there are other international instruments that pertain to the recognition and enforcement of "foreign judgments" [3]. More than 40 African countries, including South Africa and Kenya, ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards [4].

2. The Legal Framework for Recognition and Enforcement

2.1 South Africa: Legal Framework and Historical Development.

The New York Convention, adopted by the United Nations following a diplomatic conference in May-June 1958, is the fundamental document for the recognition and enforcement of foreign arbitral awards. [5] South Africa possesses one of the continent's most developed legal frameworks for both domestic and international commercial arbitration. however, the tradition of commercial arbitration in South Africa began with the English Arbitration Act 1889 during the colonial era. It was replaced by the South African Arbitration Act 1965, based on the English Arbitration Act 1950. In 1976, South Africa adopted the New York Convention, and its courts generally enforced foreign arbitral awards. In 2017, South Africa adopted the UNCITRAL Model Law by enacting the International Arbitration Act 2017, with minor amendments. This brought South African law in line with international standards, establishing South Africa's reputation as a modern seat of international arbitration and providing a framework to support proceedings outside the country [6].

2.2 Conditions for the recognition and enforcement of foreign arbitral awards in South Africa under the New York Convention and other arbitration laws.

There are certain requirements that must be met by parties seeking enforcement of foreign arbitral awards under the International Arbitration Act, which has the same meaning for the recognition and enforcement of foreign arbitral awards as Law 40 of 1977 on the Recognition and Enforcement of Foreign Arbitral Awards.

An application for a writ referred to in Article 2(1) shall be made in any court and shall: (a) be accompanied by (i) the original of the relevant foreign arbitral award and the original arbitration agreement pursuant to which such award was made, certified in such a way that foreign documents can be certified to secure their presentation in any court; or (ii) a certified copy of this decision and agreement; and (b) if such judgment or agreement is in a language other than one of the official languages of the Republic, be accompanied by a sworn translation of the judgment or agreement into one of those official languages, certified in such a manner as foreign documents may be certified so that they may be produced in any court.

According to this provision, a party wishing to obtain recognition and enforcement of its arbitral awards must follow the above procedures. On the other hand, Chapter VIII, Recognition and Enforcement of Arbitral Awards, Article 35 of the International Arbitration Act 2017 (IAA) has the same meaning: (1) An arbitral award, regardless of the country in which it was made, shall be recognized as binding and, upon written application to the competent court, shall be enforceable in accordance with the provisions of this section. (P.2) A party relying on or seeking enforcement of an arbitral award shall furnish the original or a copy of the award or, if the award is not made in an official language of the Republic, a translation of the award into that language [7].

2.3 Grounds for refusal, recognition, and enforcement of an arbitral award in South Africa

In South Africa, an arbitral tribunal may refuse to enforce an award on specific grounds consistent with the New York Convention and South African law. These grounds include: (1) the subject matter of the dispute is not arbitrable under South African law; (2) the application of the law would disturb public order in South Africa; (3) neither party had the legal capacity to enter into contracts or the arbitration agreement was invalid under applicable law; (4) failure to give notice to the opposing party or failure to present its case; (5) the arbitral award relates to disputes that are not provided for in the arbitration certificate, although individual parts may be enforced; (6) the composition of the court or the arbitration procedure did not comply with the Agreement or applicable law; (7) the arbitral award is not yet enforceable or has been set aside by an organ of the court in which it was made; (8) If an application for setting aside an arbitral award is pending, the court may defer enforcement and require security from the party objecting to enforcement. Article 36 of Appendix 1 to the IAA 2017 goes further than Article 36 of the Model Law in establishing two situations in which the recognition and enforcement of an arbitral award would be contrary to public policy. It provides that, in order to avoid any ambiguity and without prejudice to the general application of article 36 (1) (b) (ii), the following circumstances would be contrary to public policy:

1. There has been a breach of the duty of the court to act fairly in making an award that has caused or will cause a substantial injustice to the party objecting to recognition or enforcement.
2. The conviction was provoked by or influenced by fraud or corruption [8].

2.3.1 South Africa: Case Study - Momoco International Limited v. GFE-MIR Alloys and Minerals SA (Pty) Ltd [9].

Parties

In the case between Momoco International Limited and GFE-MIR Alloys and Minerals SA (Pty) Ltd. Momoco is a UK company incorporated under the laws of the United Kingdom and duly registered and incorporated under the laws of England and Wales, United Kingdom. Momoco acted as a claimant in the arbitration. GFE is a South African company duly registered and incorporated under the laws of the Republic of South Africa.

Background

The facts that led to the arbitration forming the basis of this statement are largely common to the parties and are set out in Momoco's constituent affidavit. The applicant is an international business entity that imports and exports various goods. The respondent specializes in the production and sale of alloys and related products for steel, foundry, and light metallurgy. Between 2011 and 2014, the plaintiff entered into numerous sales contracts with the defendant, under which the defendant ordered and supplied the defendant with flux-cored wire (9 mm or 13 mm) at an agreed price. The parties entered into written arbitration agreements and agreed that the applicable law is the law of the People's Republic of China. Article 9 of the various agreements constituted an arbitration agreement as defined in the Model Law, which was a common matter of the parties.

This is an application for recognition and enforcement of a foreign arbitral award. The claim arises out of an arbitral award rendered on 12 June 2020 in an arbitration between the claimant, Momoco International Limited, and the respondent, GFE-MIR Alloys and Minerals SA (Pty) Limited (GFE), held in Beijing, People's Republic of China. GFE is resistant to application. In connection with this award, GFE was tasked to:

1. to pay the applicant USD 1,088,488.63 plus interest from 27 January 2014 to 26 November 2018 at the rate of 3.00%;
2. to compensate the plaintiff for his legal costs in the amount of 65,500 US dollars;
3. pay the arbitration fee of RMB 236,521 in full; and
4. pay the arbitration costs of the counterclaim in the amount of USD 21,776.3.

The South African court refused to enforce the arbitral award on grounds of public policy, ruling that the recognition and enforcement of a foreign arbitral award under section 16 of section 18 (1) (a) (ii) of the International Arbitration Act 15 of 2017 (Gulomov, Ismoiljon) would violate South Africa's exchange control laws, which are part of its state policy [10].

3. Legal framework for recognition and enforcement in Kenya.

3.1 KENYA: Legal Framework and Historical Development.

Kenya represents a significant arbitration jurisdiction in East Africa, characterized by a stable legal framework and consistent engagement with international arbitration norms. As one of the region's largest economies with extensive cross-border commercial activity, Kenya has developed a comprehensive system for recognizing and enforcing foreign arbitral awards; the Arbitration Act of 1995 is the principal national legislation in Kenya in the field of arbitration. This act provides the legal framework for arbitration in Kenya and incorporates the principles of the Model Law of the United Nations Commission on International Trade Law (UNCITRAL). In 1976, Kenya ratified and adopted the 1958 New York Convention, which serves as the legal framework for the recognition and enforcement of foreign arbitral awards. In order to enforce foreign arbitral awards, Kenya has incorporated the Convention through the Arbitration Act, which means that foreign awards of other Convention countries are directly enforceable in Kenya [11].

Recognition and enforcement of foreign arbitral awards in Kenya are largely regulated by the Arbitration Act and the Civil Procedure Act, Cap. 21 of the Laws of Kenya. The Arbitration Act, 1995 (as amended in 2009), and the Arbitration Act (Cap. 49, Laws of Kenya) are the primary legislation governing arbitration. It is modeled on the UNCITRAL Model Law, ensuring consistency with international best practices, and facilitates the recognition of foreign arbitral awards. In Kenya, Sections 36 and 37 of the Arbitration Act ensure that both foreign and domestic awards receive equal treatment regarding recognition and enforcement, consistent with Article III of the New York Convention. The grounds for declining recognition and enforcement of foreign awards under the Kenyan Arbitration Act reflect those in the New York Convention; however, the Kenyan framework introduces additional grounds for refusal in cases where an award has been influenced by fraud, bribery, corruption, or undue influence. This comprehensive approach underscores the Act's commitment to fair arbitration practices and the integrity of arbitral awards [12].

4. Kenya: Enforcement Procedures and Documentary Requirements.

4.1 Procedural Pathway for Enforcement

The Arbitration Act of Kenya 1995 (as amended in 2009) and the Arbitration Act (Chapter 49 of the Laws of Kenya) are the principal pieces of legislation governing arbitration, which are equally relevant to the recognition and enforcement of foreign arbitration under the UNCITRAL Model Law and the New York Convention of Kenya 1958. The enforcement of foreign arbitral awards in Kenya follows a structured procedural pathway established under Section 36 of the Arbitration Act 1995. Enforcement proceedings are initiated by way of an originating summons or chamber summons application filed in the High Court of Kenya.

4.2 Enforcement Process in Kenya

An international arbitration award shall be recognized as binding and enforced in accordance with the provisions of the New York Convention or any other convention to which Kenya is a signatory and relating to arbitral awards.

1. Filing the Application with the High Court.

Enforcement begins with an application to the High Court of Kenya, typically filed in the commercial court or in the region where enforcement is sought. The application is made under Section 36 of the Arbitration Act.

2. Documentary Requirements for Enforcement Applications

Section 36(2) of the Arbitration Act specifies the documents that must accompany an enforcement application.

• Original award or certified copy.
• Original arbitration agreement or certified copy.
• A certified translation into English, if the decision or agreement is in another language.
• An affidavit detailing the facts of the award and confirming its final and enforceable nature.

The above request for a condition is made in accordance with article 36 of the Arbitration Act, and the term "New York Convention" means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted by the General Assembly of the United Nations in New York on 10 June 1958 and acceded to by Kenya on 10 February 1989, with a reciprocal binding clause [13].

4.3 Grounds for Refusal of Recognition and Enforcement of Arbitral Award in Kenya.

The grounds for refusing recognition and enforcement of foreign arbitral awards under the Kenyan Arbitration Act are similar to those described in Article V (1) and (2) of the New York Convention [14]. However, Section 37 of the Arbitration Act (Cap. 49, Laws of Kenya) indicates grounds for refusal of recognition or enforcement. (1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only: (a) at the request of the party against whom it is invoked, if that party furnishes to the High Court proof that: (1) a party to the arbitration agreement was under some incapacity; or (2) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made; (3) the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (4) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognized and enforced; or (5) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place; or (6) the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made; or (7) the making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence; (b) if the High Court finds that: (2) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or (2) the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya [15]. However, under the Kenyan Arbitration Act, additional grounds may be used to refuse recognition and enforcement of arbitral awards if the award has been compelled or affected by fraud, bribery, or undue influence [16]. In addition, uncertainty as to the definition and scope of the public policy exception gives municipal courts the power to refuse recognition and enforcement of foreign arbitral awards.

5. CASE STUDY: Nyutu Agrovet Limited v. Airtel Networks Kenya Limited.

In Kenya, the principle of finality in arbitral awards has been affirmed in several cases. The principal case is the case of Nyutu Agrovet Limited v. Airtel Networks Kenya Limited; Chartered Institute of Arbitrators - Kenya Chapter (Interested Party) [2019]. In this landmark case, the Supreme Court of Kenya affirmed the principle that arbitral awards are final and binding but can be set aside under section 35 of the Arbitration Act. The court emphasized that the finality of arbitral awards is a matter of public policy and must be respected to maintain the integrity of the arbitral process. [17] In arbitration, the principle emphasizes that the parties involved have mutually agreed to resolve their disputes outside the judicial system, entrusting this task to a designated body of arbitrators.

The essence of this agreement is that the arbitral award shall be deemed final for as long as it remains in force.

However, if the award is set aside, as in a particular case before the High Court, the decision of the High Court itself remains final. It is important to note that the parties cannot appeal this decision; it is final and binding.

Thus, the parties who choose arbitration must agree to this goal, unless they collectively decide to participate in a new round of arbitration. Ultimately, the decision of the High Court must be regarded and respected as final, reflecting the original voluntary agreement of the parties.

The Court seems to be saying that even the High Court's annulment decision is a right of the parties and that they are bound by it in order to curb the courts' constant interference in arbitration through appeals.

This case demonstrates Kenya's maturation as an arbitration jurisdiction, balancing respect for party autonomy with necessary judicial safeguards in a manner consistent with international best practices.

CONCLUSION

The recognition and enforcement of foreign arbitral awards in Africa represents a dynamic field where international standards intersect with diverse national legal traditions. South Africa and Kenya exemplify different approaches within this continuum, both demonstrating commitment to arbitration while navigating distinct challenges.

The widespread adoption of the New York Convention across Africa provides a common foundation, but its implementation reveals persistent tensions between international harmonization and national sovereignty.

The public policy exception remains the most significant point of divergence, reflecting deeper questions about the relationship between cross-border commerce and domestic regulatory priorities.

As African economies continue integrating into global markets, effective enforcement mechanisms become increasingly critical.

The progress demonstrated by South Africa's legislative modernization and Kenya's jurisprudential development suggests positive evolution, yet challenges remain in achieving predictable, efficient enforcement across the continent.

Future developments will likely focus on greater regional harmonization, enhanced judicial specialization, and continued engagement with international best practices. By addressing the identified challenges through coordinated reform efforts, African states can strengthen their dispute resolution frameworks, thereby supporting economic growth, investment, and regional integration.