The Attorney-General and Minister for Justice, Godfred Yeboah Dame, has emphasized the need for global leaders, particularly regulators of the legal profession, to re-examine rules governing the practice of law across borders in light of current global circumstances.
Mr. Dame made these remarks as the Guest of Honour at the African Regional Forum, part of the International Bar Association’s (IBA) annual conference in Mexico City on Thursday, 19th September 2024.
Founded in 1947, the IBA is the leading international bar association for legal practitioners, bar associations, and law societies. Its membership includes over 80,000 individual lawyers from top law firms worldwide, as well as 190 bar associations and law societies from more than 170 countries. The conference opened on Sunday, 15th September 2024, with remarks from former Mexican President Ernesto Zedillo.
In his speech, Ghana’s Attorney-General noted that the global community has become a “virtualised world,” which has led law practice to take on cross-border characteristics. He stressed that local jurisdictions are now open to the world, requiring African lawyers to be world-class professionals operating within a global legal community to resolve modern disputes with international elements.
“If our practice is essentially and unavoidably international or cross-border, then there must be a rethink of the legal framework regulating the practice of lawyers in our respective domestic settings,” Dame said. He advocated for the removal of licensing barriers that prevent lawyers from practicing in jurisdictions outside where they were trained, in order to align with the international nature of legal practice.
While acknowledging the differences in legal systems, training methods, licensing regimes, and standards of professional conduct across countries, Mr. Dame argued that international legal practice offers a model for overcoming these barriers. He pointed out that lawyers represent nations in regional courts and international tribunals without the need for specific licenses, demonstrating that such reforms are possible.
He further suggested starting with a framework allowing state counsel, who are empowered by their respective countries to represent their governments, to appear in domestic courts of other nations without licensing restrictions. This, he argued, would set the stage for harmonizing legal standards and reducing regulatory barriers.
Mr. Dame illustrated the incongruity in current regulations by highlighting the situation where state counsel can represent their nations in arbitration panels in cities like London or Nairobi without a specific license, but cannot appear in the High Courts of those cities to defend their nation in proceedings to enforce an arbitration award. “We ought to begin the process of removing the regulatory barriers to the appearance of lawyers qualified in other jurisdictions in such proceedings,” he added.
The Impact of African Continental Free Trade Area (AfCFTA) on Law Practice
The Attorney-General also addressed the impact of the African Continental Free Trade Area (AfCFTA) on law practice. AfCFTA, which aims to connect 1.3 billion people and create a $3.4 trillion economic bloc, is expected to boost commerce within Africa, becoming the largest free zone since the World Trade Organization’s creation in 1994.
“The African lawyer’s role in resolving disputes has been heightened by the AfCFTA. While countries have their own courts of first instance and appellate structures, the AfCFTA has an established dispute settlement mechanism for trade disputes,” Dame noted.
He raised concerns about potential conflicts between the AfCFTA’s dispute resolution body and domestic legal systems, as well as challenges related to national sovereignty. However, he emphasized that the political endorsement of AfCFTA’s dispute resolution mechanisms by African states would help ensure that the rulings of its panels and Appellate Body become part of African legal systems, thereby promoting legal security, certainty, and transparency.
Mr. Dame called on African lawyers to support AfCFTA and to promote the benefits of regional integration and the global multilateral trading system, highlighting the need for training in dispute adjudication within AfCFTA’s structures.
International Arbitration and the Need for Reform in African Law Practice
Mr. Dame also examined the impact of international arbitration on African law practice, emphasizing the need for reforms in legal regulatory processes governing arbitration on the continent. He noted that as business in Africa evolves and more commercial agreements include alternative dispute resolution clauses, arbitration’s influence on African economies is growing.
Referencing a recent $11 billion arbitration award against the Government of Nigeria, which was later set aside by the High Court of London, Dame argued that Africa often suffers from prejudiced outcomes in international arbitration forums. He criticized arbitration for sometimes favoring companies that fail in domestic courts but succeed in international arbitration actions.
While recognizing the advantages of arbitration, including neutrality and efficiency, Dame warned of its susceptibility to fraud and abuse due to the secrecy and finality of proceedings. He urged the development of more robust safeguards to protect African countries in commercial disputes, emphasizing that most arbitration involving African nations should take place on the continent, governed by African laws.
The Attorney-General cited Ghana’s efforts to reform its arbitration regime, including a proposed amendment to the State (Property and Contracts) Act, 1960. This amendment would require contracts involving the Ghanaian state to stipulate Ghanaian law as the governing law and designate Ghana as the seat of arbitration, with proceedings held at the ADR Centre in Accra. These reforms, Dame said, would eliminate the need for Ghanaian lawyers and government officials to travel to foreign jurisdictions for arbitration, reducing costs and ensuring that disputes are resolved within a legal framework familiar to Ghana.
With these steps, he expressed optimism that Africa could become a respected hub for arbitration, where disputes involving African nations are resolved transparently, fairly, and in accordance with African legal standards.