Introduction
Procedural delay obstructs access to justice in Mozambique and many other countries. It is expected to persist, given population growth, the intensity of commercial transactions and the resulting increase in disputes, accompanied by greater demand for dispute resolution services.
Responding to the need for faster resolution of disputes involving rights that may be freely disposed of, Parliament enacted Law No. 11/99 of 8 July (LACM). It governs arbitration, conciliation and mediation as alternatives that parties may adopt before, or instead of, referring disputes to the judiciary (Article 1).
Despite that legislation, consolidating an arbitration culture requires knowledge, confidence and practical use. The Maputo Centre for Arbitration, Conciliation and Mediation (CACM) is an institutional reference point in Mozambican arbitration.
The position advanced here is that lawyers' knowledge of arbitration and willingness to recommend it to clients are decisive factors in its use.
Advantages of arbitration as an alternative dispute resolution mechanism
As an alternative dispute resolution mechanism, arbitration offers advantages derived from the principles in Article 2(2) LACM, including:
Party autonomy in choosing arbitration: it is not imposed on the parties;
Flexibility: arbitration favours adaptable and simplified procedures, allowing parties to tailor proceedings to their specific needs;
Confidentiality: arbitration proceedings are generally confidential as to both participants and content;
Integrity: arbitrators are required to act impartially and independently;
Speed: flexibility and relative informality tend to make arbitration dynamic and efficient, distinguishing it from traditional court litigation;
Equality: parties must receive equitable treatment in asserting their rights;
Oral proceedings: arbitration favours hearings in the dispute resolution process;
The right to be heard: parties must have an opportunity to comment orally or in writing before a decision is made on an issue.
The enforceability of the award also illustrates arbitration's advantages. An award has the same effects as a court judgment and, where it orders performance, constitutes an enforceable instrument (Articles 42 and 43 LACM). Private administration of proceedings does not prevent compulsory enforcement of the rights recognised in the award if the debtor does not comply voluntarily.
A further benefit is that, unlike a court judgment, an arbitral award is not appealable on the merits. It may only be challenged through annulment in the cases strictly provided for by law (Article 44 LACM).
These principles show arbitration's advantages over litigation. However, those advantages must be experienced in practice, which requires more people to engage with arbitration both as users and as professionals, including lawyers and arbitrators.
Requirements for acting as an arbitrator
The first question when considering lawyers' role in promoting arbitration is whether an arbitrator must be a lawyer. The answer appears in Article 19 of Law No. 11/99 of 8 July (LACM)1, which provides that, upon accepting appointment, an arbitrator must: (a) be an adult natural person with full legal capacity; and (b) satisfy the requirements of the arbitration agreement or the institutional arbitration body designated by the parties.
No specific qualification in law or arbitration is required, and there is no professional arbitrator's licence equivalent to a lawyer's licence. This may explain the observation that arbitration is a role one performs rather than a status one holds. Despite freedom of appointment, parties in practice rarely select someone without arbitration training.
In countries where arbitration is well established, including the United States, France, the United Kingdom and Nigeria, it is becoming increasingly professionalised, as shown by the growing number of practitioners devoting most or all of their time to arbitration.
Unlike the practice of acts reserved to the legal profession, Mozambican law does not restrict foreigners from acting as arbitrators (Article 21(1) LACM). Parties may therefore appoint foreign nationals in arbitration taking place in, or connected with, Mozambique.
The lawyer's opportunity to promote arbitration
Among those trained in arbitration, lawyers are particularly well placed to participate because proceedings invariably involve legal issues, whether as counsel, sole arbitrators or members of a tribunal2.
For Mozambican lawyers, arbitration, like other ADR mechanisms, is first an opportunity for professional practice. A career in arbitration can be developed without abandoning legal practice or other legal professions.
The stronger an arbitrator's reputation before, during and after proceedings, the greater the prospect of another appointment.
Arbitration also offers academic and research opportunities, particularly in Mozambique, where interest and an arbitration culture are developing in a movement led by lawyers, the professionals most directly exposed to the weaknesses of traditional litigation.
Reasons for limited use of arbitration
People use what they know. Lawyers' everyday tools largely reflect their academic and professional training. Arbitration should therefore have a greater place in legal education and continuing professional development.
Training by the Mozambican Bar Association and initiatives promoting ADR can contribute to that objective. Acquired knowledge must be translated into professional practice.
Promoting an arbitration culture
Promoting an arbitration culture can break the old paradigm of the lawyer as solely an adversarial professional. The lawyer's first role in Mozambican arbitration is therefore to promote that culture.
An arbitration culture is promoted by acquiring and sharing knowledge. As in every field, whatever knowledge one has should be shared.
Lawyers should study arbitration continuously, drawing on local materials such as the arbitration law and exploring the extensive resources available abroad. A quick internet search for 'arbitration' reveals a vast range of written and audiovisual content. Knowing the Arbitration, Conciliation and Mediation Law is an excellent starting point.
Ideally, arbitration, like other ADR mechanisms, should become part of lawyers' professional outlook. An arbitration-friendly approach means responding positively to an arbitration clause, recognising the choice of a faster dispute resolution mechanism rather than rejecting it.
The advantage of the lawyer-client relationship of trust
Clients generally entrust lawyers with sensitive matters that they might not disclose even to their spouses. The lawyer-client relationship rests on trust. Since clients choose lawyers they trust, lawyers have significant influence over them.
The social role of legal practice and lawyers' ethical and professional duties ensure that this influence is not used for ethically improper purposes.
Involvement in almost every stage of managing a client's interests gives lawyers an opportunity to influence the means of resolving possible disputes.
For example, when drafting or reviewing a services or raw-material supply contract, a lawyer can promote an arbitration clause suited to that contractual relationship's specific needs and characteristics, enabling disputes to be resolved through arbitration. At that stage, the lawyer is particularly well placed to avoid an inadequate dispute resolution arrangement that could expose the client to financial loss if a dispute must proceed through notably slow court litigation.
When a dispute arises under a contract without an arbitration clause, the lawyer can still encourage the client to reach a submission agreement with the other party so that the existing dispute is resolved by arbitration.
Even after a dispute has been brought before a court, the lawyer can promote its resolution outside court through arbitration.
Conclusion
Mozambique therefore offers considerable scope for arbitration, and lawyers are especially well placed to promote an arbitration culture. Lawyers need to learn more about its advantages so that they can advise clients on this useful dispute resolution mechanism
Arbitration requires collective effort to deliver its benefits. Lawyers must commit to promoting and implementing alternative dispute resolution.
The client benefits, the lawyer benefits and society benefits.
Notes and references
- Arbitration, Mediation and Conciliation Law
- Arbitration work includes academic activity, research, acting as an appointed arbitrator, representing a party and other roles.