When a disagreement that leads to constructive conflict veers into acrimony and the announcement of a dispute, in lieu of litigation, a more restorative and less costly mechanism for resolution is proffered. Alternative Dispute Resolution (ADR) offers the opportunity for more nuanced conversation about the issue/s at hand. It offers the opportunity to explore less charted paths to resolution. ADR allows participants to be guided by intuition and experience rather than rules alone. ADR effectively creates arenas for the resolution of conflict in commercial and other disputes, including those arising from litigation or divorce. ADR includes, but is not limited to, mediations, neutral evaluations and arbitrations. Thus, ADR processes may be learned and applied in the myriad of contexts where people interact.
With the acceleration of the use of remote technologies for workplace, regional and international commercial operations, Online Dispute Resolution (ODR) has come to the fore. ODR uses primarily internet-based communication devices. ODR participants are neither face-to-face nor in the same vicinity. In fact, they need not even be on the same continent. Therefore, ODR/ADR is touted as arguably the most cost-effective incarnation of dispute resolution.
The colloquium critically evaluates the advisability of possible widespread use of ODR/ADR in the African context. The legal and largely developmental economic conditions in African countries may pose impediments to ODR/ADR. Moreover, the compatibility of ODR/ADR with African social mores of dispute resolution requires multifaceted discussion. Philosophical perspectives, such as Ubuntu may not easily fit with fast-paced resolution devices that do not hold the restoration of equilibrium as having primacy. Technology artificially mediates interactions, such that demeanour, character, sincerity or other sources of tension and dread may not easily be discerned. ODR also limits the role of communal approaches that are grounded in existing ongoing relationships.
The African Continental Free Trade Area (AfCFTA), the largest free trade area, is the flagship project of the African Union’s (AU) Agenda 2063, drawing together members of the AU and the Regional Economic Communities. The AfCFTA mandate is to ‘eliminate trade barriers and boost intra-Africa trade’, foster sustainable investment, reduce poverty and actualise external trade relations. As such, the AfCFTA Protocol on Rules and Procedures on the Settlement of Disputes aims for a transparent, accountable, fair, and predictable dispute settlement. Article 8 of the Protocol outlines ADR, but the charted ADR processes have been criticised as rigid and not functional.
Indeed, the effectiveness of ODR/ADR within the African legal and socio-economic context in resolving disputes is a subject of ongoing critical debate and analysis. A critical analysis of ODR/ADR requires an understanding of the current challenges within African Regional Communities (RECs) that are barriers to a conducive environment to foster regional cooperation and integration to advance the free movement of goods, labour, people and services.
