Brexit and Africa

Published in The Nation on 19 July 2019

Brexit, combined with the trade wars involving the world’s two powerhouse economies, China and the USA, is a major factor in generating global uncertainty at present. Uncertainty is bad for global business, which also impacts African countries, including Nigeria, the biggest economy on the African continent.

From an African perspective these factors could however play to the continent’s advantage as we see potentially a modern "scramble for Africa."

European countries, as shown by the unprecedented recent approaches of Theresa May, British prime minister; Angela Merkel, German Chancellor; and pres. Emmanuel Macron from France, are keen to invest and develop closer links with Africa, while China has its Belt and Road Policy targeting the continent and Japan is holding TICAD – Tokyo International Conference of Africa’s Development – later this year. The US too, through the Overseas Private Investment Corporation (OPIC), is seeking significantly increased investment in Africa. The UK indeed intends being the biggest investor amongst the G7 in Africa, and others are following suit.

Decisive and strategic action needed

So in an uncertain world Africa should be able to take advantage, by acting decisively and strategically. One way may be through the Africa Continental Free Trade Area (AfCFTA) agreement.

The AfCFTA agreement came into force on 30 May and will make Africa the largest free-trade area in the world by population. The trade agreement was given the go ahead on April 29 as 22 countries have now ratified its adoption.

The African Union and African Ministers of Trade must now finalize work on supporting instruments to facilitate the launch of the operational phase of the AfCFTA during an Extra-Ordinary heads of state and government summit on 7th July 2019.

Whilst Nigeria, the biggest economy on the continent, has not yet signed or ratified the agreement, recent statements of the government concerned about "the train leaving the station" may hint at movement towards joining.

Closing the gap

Regardless of Brexit and AfCFTA, the key concerns underpinning growth and development in Africa remain power, infrastructure, and education. With a pan-Africa gap of $170 billion per year in infrastructure, the benefits driven by free trade, including industrialisation, will not be capable of full exploitation unless this changes.

Progress towards closing this gap can be made, assuming that African countries drive a clear and certain strategy and policy, put predictable regulations in place, and deal with currency fluctuations and control corruption.

The future of English law

As to the legal market, there have been a number of debates around the future use of English law, arbitration and enforceability of judgments post Brexit.

Broadly speaking there is no reason not to continue using English as governing law post Brexit. All the same reasons for using the system still stand, including its sophistication, its long history of jurisprudence, and that it is well-recognised around the world, and commercially aware.

Each contract will continue to need to be taken on its merits. In addition, for arbitration Brexit will not impact the enforcement of arbitration awards – generally these are dealt with under New York Convention. This will be unaffected by Brexit and London will continue to be as important as a seat for international arbitration.

This is not a threat to Nigerian, or other African, law firms. At Hogan Lovells we are committed to Africa and we have worked with and continue to work mutually with a number of the top Nigerian law firms. We respect both their technical abilities, commercially and their understanding of the local market and client service.

In addition we see opportunities for Nigerian arbitrators increasing in the continent. A key feature of arbitration is neutrality. The big opportunity for Nigerian arbitrators is sitting on cases involving other African countries.

Technological developments are making it easier for international arbitrators to be based outside the popular seats of arbitration. This will therefore likely help to increase the participation of African arbitrators and lawyers in the international arbitration process.

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