Arbitration is a private dispute resolution mechanism established for the settlement of disputes by a neutral third party (the Arbitrator) or panel of neutrals referred to as the Arbitral Tribunal. Understanding arbitration in Cameroon requires you to identify the key features.
Amongst the key features of the arbitration process is the parties’ agreement to arbitrate. The agreement to arbitrate is the foundation of any valid arbitration. It is the basic source of the tribunal’s power and authority to arbitrate the dispute between the parties. The contractual nature of the arbitration requires the consent of each party for arbitration to happen. Without an arbitration agreement, there can be no arbitration.
Litigation is the widely known method of conflict resolution; conflicts are inevitable in a business relationship or interpersonal relationship. In the Cameroon legal system, parties resorting to Litigation resolve conflicts, where an aggrieved party brings an action in court against the offending party. Likewise, we have Arbitration as a means of dispute resolution, it is preferred because it is cheaper and faster and it preserves the relationship between the parties after it is concluded.
The main advantage of arbitration is to avoid long and expensive litigation processes. The process of arbitration in Cameroon is cheaper and it allows individuals to represent themselves easily although they are allowed to have legal representation.
Arbitration is classified under Alternative Dispute Resolution, which includes:
- Reconciliation and
It must be noted that not every dispute can be resolved through Arbitration. Therefore, there are arbitral matters, which can be settled by arbitration; and non-arbitral matters which cannot be settled through arbitration.
How arbitration works in Cameroon
Understanding arbitration in Cameroon starts from identifying arbitral matters.
Arbitral matters include;
- Breach of contractual agreement
- Matrimonial causes ancillary matters e.g. division of property.
- Compensation for compulsory acquisition of land/ land disputes.
Non-arbitral matters include:
- Criminal matters in general except plea bargain
- Election petitions are a matter of public policy
- Matrimonial causes such as the dissolution of marriage, nullity of a void marriage, etc
Arbitration Procedure in Cameroon
For an arbitration to be valid the following condition precedence must be followed:
- It must be in writing: The arbitration agreement should be in writing. It is mandatory that an arbitration agreement is in writing as it is proof of the parties’ intention to submit to arbitration. It is writing contained in a document signed by the parties, or in an exchange of letters, or other means of communication that provide a record of the arbitration agreement.
- Agreement to Arbitrate: One of the important features of arbitration is that it shows that the parties have consented to resolve their dispute by arbitration. So, where there is no voluntary agreement by the parties, then there is no valid arbitration.
- The scope of the Arbitration: The arbitration agreement must determine the scope of the arbitral tribunal’s jurisdiction. That is the subject matter of the dispute must be determined.
- Number of Arbitrators to be Appointed: This will usually depend on the complexity of the dispute and the value of the claims. In simple and small arbitrations, it is advisable to appoint a sole arbitrator unlike in complex and high-value arbitrations where having a panel of three arbitrators would be more appropriate.
- Choice of arbitrator: The parties have the right to stipulate the procedure for appointing their arbitrators. An Arbitrator can be appointed by the parties, the court, or by an institution. Parties should be careful when specifying the qualifications of the arbitrator or the tribunal. Except in submission agreements that are for existing disputes, it is not advisable for parties to specify the name of the arbitrator in the arbitration agreement, as they do not know if the specified arbitrator will be available when disputes arise.
- The location of the arbitration: The choice of the seat of the arbitration is an important consideration as it determines which national law that would govern the arbitration as well as the courts which would have the power to provide support to the proceedings.
- Confidentiality: While arbitration is essentially a private and confidential mechanism, many national laws including the Uniform Act on Arbitration do not provide for the confidentiality of the proceedings and the award. Consequently, it is advisable for parties to regulate it in their arbitration agreement.
- Hearing: Hearings during arbitral proceedings are less formal and private unless the parties agree otherwise. The claimant files to state his points/statement of claim within the prescribed time. Where the defendant fails to submit his points/statement of defense, the tribunal shall proceed with the arbitration except where the party in default shows good cause for such default. Such default on the part of the defendant should, however not be treated by the tribunal as an admission of the claim of the claimant.
- Language: Language of the arbitration and Applicable arbitration law that would govern the proceedings.
- Arbitral Award: This is the decision of the arbitral tribunal. It determines the rights of the parties with finality. The award shall be in writing and should contain the following: the names of the parties; the reasons for the award unless the parties earlier agreed that no reason should be given by the arbitrator; the date the award was made; the place where it was made. The arbitrator or majority of the arbitrators must then sign it.
Understanding arbitration in Cameroon aid businessmen to be conscious on the condition precedents as discussed above. One of the advantages of arbitration is the independence enjoyed by the parties in deciding how they want their arbitration conducted. The parties can exercise this independence when drafting their arbitration agreement to ensure that they obtain the utmost benefit from the process.Understanding arbitration in Cameroon is a plus to a successful business.
It is pertinent that parties owe an obligation to themselves to ensure that they carefully modify their arbitration agreement to suit their needs while ensuring that the essential requirements of a valid arbitration agreement are satisfied. When all this is met, they are assured of enjoying the benefits of speed and effectiveness associated with the arbitration process.
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Article by Barr. Mafany Victor Ngando
Kinsmen Advocates Law Firm
“The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances