Proceedings of the 13th International Conference on New Ideas in Management, Economics and Accounting
Year: 2024
DOI:
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Evaluation of Arbitration Practices in Least Developed Countries
M. Omari, A. Gerçek
ABSTRACT:
Introduction – Alternative dispute resolution methods have a complementary function in resolving disputes and aim to resolve disputes before they turn into judicial disputes. International commercial arbitration is the most preferred alternative dispute resolution in recent years. In least developed countries, alternative methods of conflict resolution are becoming more and more popular. Arbitration, mediation and other alternative dispute resolution methods have also been introduced to motivate people and reduce the workload of the judiciary. The aim of this study is to understand alternative dispute resolution methods and discuss arbitration practices in least developed countries. For this purpose, arbitration practices used in various disputes in Asia, Africa and other least developed countries is examined.
Arbitration Practices in The Least Developed Countries in Asia– The Asian continent continues is the new center and area of attraction for world trade. The most prominent of Arbitration Centers in the Asian continent are the Singapore International Arbitration Centre (SIAC) and the Hong Kong International Arbitration Center (HKIAC). But this is not the case in the least developed Asian countries [1].
Arbitration in Afghanistan is governed by the Afghanistan Commercial Arbitration Law, which came into force in 2007. There is no doubt that Afghanistan is witnessing positive developments in the field of international arbitration, but arbitration practices were suspended after Afghanistan fell into the hands of the Taliban in 2021. In 2016, the Myanmar Union Parliament passed the Arbitration Act 2016, which repealed the Myanmar Arbitration Act 1944. The main arbitration institutions commonly used in Myanmar are: SIAC and HKIAC. Bangladesh enacted a new arbitration law, known as The Arbitration Act, 2001. The new Act, principally based on the UNCITRAL Model Law on International Commercial Arbitration (1985), consolidates the law relating both to domestic and international commercial arbitration. The Cambodian government has passed the Commercial Arbitration Act and established an independent National Commercial Arbitration Center (NCAC) to provide citizens with alternative dispute resolution resources.
Arbitration Practices in The Least Developed Countries in Africa – Investment in African countries has been increasing steadily over the past few years, sometimes creating conflicts and increasingly challenging business environments that require inclusive and effective solution services.
Tanzania, Benin, and Madagascar have accepted international dispute resolution demands by ratifying the 1965 ICSID Convention through its law. Arbitration centers established in these countries were established to encourage the use of arbitration in resolving international and national commercial disputes and to reduce dependence on the court system in order to provide convenience. Uganda, Kenya, Angola and Mozambique does not have a long history of formal arbitration. Arbitration law in these countries largely follows the UNCITRAL Model Law on International Commercial Arbitration and provides many decisions that are generally accepted as best practices. The accession of these countries to the ICSID Convention is an important step in protecting foreign investors in the country and allows foreign investors to arbitrate investment disputes outside the country [2].
Arbitration Practices in Other Least Developed Countries – Arbitration Laws in Maldives and Cape Verde are based on the UNCITRAL Model Law, But the Arbitration Law in Lesotho is not based on the UNCITRAL Model Law. The arbitration centers in these countries were established to promote arbitration as a means of dispute resolution and to provide cost-effective and efficient services to business, domestic and foreign investors.
General Evaluation and Conclusions – International arbitration is now considered the most effective method widely used worldwide in resolving international commercial disputes and continues to develop. Arbitration in least-developed countries faces some challenges. One of these challenges is trust. There are not many recognized arbitrators based in the least-developed countries. The least developed countries in Asia and Africa also face the problem of sheer scale. Thus, there is a need for strong, respected arbitration centers and arbitration institutions in these countries. Additionally, there are no conventions, treaties, or other regulations regarding the recognition and enforcement of foreign court decisions in least-developed countries. All these factors make dispute resolution through arbitration the only real solution method.
keywords: Alternative Dispute Resolution, Arbitration, İnternational Commercial Arbitration, Arbitration in The Least Developed Countries