With Suzan Taha
In a captivating dialogue, LegalcommunityMENA had the privilege of engaging with Salma El-Nashar, a senior associate at Khodeir & Partners, a prominent Egyptian law firm. Recently, she graced the stage as a distinguished speaker during a pivotal panel discussion at the African Arbitration Association’s 4th annual conference.
The conference, themed “International Arbitration in Africa: Transitions and New Perspectives,” brought together legal experts and thought leaders to explore the future of dispute resolution on the African continent. The panel she contributed to, titled “New Forms of Dispute Resolution in Africa: Where Do We Go from Here?” addressed critical aspects of evolving dispute resolution methodologies in Africa. In this exclusive conversation, we delve deeper into Salma El-Nashar’s insights and experiences, shedding light on the exciting prospects and challenges in the realm of African arbitration.
El-Nashar begins by highlighting the emerging alternative dispute resolution (ADR) mechanisms gaining traction in Africa. Mediation, she notes, is increasingly regarded as an efficient means of resolving disputes, whether court-annexed or conducted outside the courtroom. Notably, in certain Southern African countries, mediation has become mandatory for specific case types. The appeal of mediation lies in its timely and cost-effective nature, with the added advantage that parties maintain control over the outcome of their dispute.
As we delve into the influence of cultural, social, and legal factors on the adoption and acceptance of new dispute resolution methods in various African countries, El-Nashar emphasizes the importance of ensuring the enforceability of mediated agreements. In some jurisdictions, such as Egypt, settlement agreements arising from court-annexed mediation are enforceable, although out-of-court mediations still face challenges in this regard. Raising awareness about mediation as an alternative dispute resolution mechanism is essential, as many disputants lack sufficient knowledge about its benefits and application.
While considering the challenges in promoting new dispute resolution approaches, El-Nashar underscores the pivotal role of technology. Digital transformation is key in promoting effective means of dispute resolution and addressing broader challenges facing the African continent. Technology not only aids in the coordination of policies but also provides solutions to critical issues such as disease outbreaks.
Online dispute resolution (ODR) platforms have seen a global rise, and El-Nashar highlights the role of technology in enhancing access to justice and alternative dispute resolution in African nations. The advantages are clear: ODR reduces costs, expedites the process, and is particularly beneficial in cases involving employment disputes, family matters, and situations with relatively small disputed amounts. Moreover, ODR can effectively operate at the initial stages of investment conflicts, a vital factor in the decision-making process for foreign investors seeking effective dispute resolution mechanisms in a given country.
Salma El-Nashar advocates for collaboration between legal practitioners, institutions, local communities, and stakeholders to promote awareness and acceptance of new dispute resolution methods. She emphasizes the importance of sharing successful outcomes and statistics while maintaining the confidentiality of the parties involved in the dispute.
Drawing lessons from international success stories, El-Nashar cites the case of Peru, where a growing number of investment arbitration cases led to the implementation of dispute prevention policies. Peru’s embrace of mediation and negotiation guidelines, coupled with the establishment of a State Coordination and Response System for International Investment Disputes (Response System), significantly improved the investment environment. Recent statistics indicate that Peru has become one of the most attractive markets for foreign direct investment (FDI) in South America.
Salma El-Nashar’s insights shed light on the transformative potential of evolving dispute resolution methodologies and the promising future of African arbitration. As Africa continues to embrace innovative approaches, it sets the stage for enhanced access to justice and a more investor-friendly environment.
About Salma El-Nashar
Salma is a Senior associate at Khodeir & Partners. She is a member of the Cairo bar and admitted before the Courts of Appeal. Her practice focuses on litigation and arbitration. She has experience across a number of industries, including in the real estate, infrastructure, construction, shareholders and investment disputes, as well as employment.