Georgina Amayo is a Senior Associate with Anjarwalla & Khanna’s Litigation & Dispute Resolution department in Nairobi. Her LinkedIn profile is at http://ke.linkedin.com/in/georgina-amayo-0a963363.

Sudhanshu Roy is a member of the International Litigation & Arbitration practice at Foley Hoag LLP in Washington D.C. His LinkedIn profile is at https://www.linkedin.com/in/sudhanshu-roy.

Introduction

Arbitrator immunity is a legal privilege extended to arbitrators to protect them from being sued for actions or decisions made within the scope of their functions.[1] This principle is rooted on the concept of judicial immunity for judges, which protects judges from lawsuits related to their judicial duties. Arbitrator immunity safeguards an arbitrator’s independence and impartiality, enabling them to render awards that are efficient and free from bias. It also enhances the finality of an arbitrator’s decisions as it limits the grounds on which awards can be challenged.

However, while arbitrator immunity is essential, it is equally important to ensure it does not erode an arbitrator’s accountability. A strong legal framework that balances immunity and accountability is critical to maintaining the integrity of the arbitration process.

The African economy has grown significantly in recent years, driven by the establishment of clear and predictable laws regulating foreign investment, as well the use of arbitration as a dispute resolution mechanism for resolving disputes. Arbitration is widely seen as an indicator of a business-friendly environment, attracting investors to jurisdictions perceived as ‘arbitration-friendly.[2] To boost investor confidence, African countries have taken crucial steps, including creating an environment where awards can be enforced and the recognising the principle of arbitrator immunity.

This note examines the evolving landscape of arbitrator immunity in Africa, highlighting the tension between independence and accountability, and the need to create a harmonized and balanced framework that fosters both investor confidence and fair dispute resolution.

Arbitrator immunity in Africa

Arbitrator immunity varies significantly across African jurisdictions due to the continent’s diverse legal traditions. Common law jurisdictions such as Kenya provide for immunity in the Arbitration Act, 1995, protect arbitrators and their agents from “anything done or omitted to be done in good faith in the discharge or purported discharge of his functions as an arbitrator.”[3] Similarly, Nigeria recently enacted the Arbitration and Mediation Act, 2023 which protects arbitrators, arbitral institutions and appointing authorities from “anything done or omitted in the discharge or purported discharge of their functions.”[4]

In contrast, many of the civil law jurisdictions such as Rwanda, Mozambique and Angola do not have laws that provide for arbitrator immunity.

For the members of the Organization for Harmonization of Business Law in Africa (OHADA), arbitrators acting under the Common Court of Justice and Arbitration (the CCJA) Rules are granted diplomatic immunity. [5] 

While arbitrator immunity is essential for safeguarding independence and decision-making, it must be carefully balanced with mechanisms for accountability. The inconsistency in the application of arbitrator immunity across African jurisdictions creates challenges for harmonization and predictability in the arbitration process as well as the recognition and enforcement of awards. 

Challenges

Lack of uniformity

As noted, the African approach to arbitrator immunity remains fragmented. Some jurisdictions provide full immunity, others offer limited protection, and a few impose full liability on arbitrators. For example, in Mozambique, under their Law n◦11/99 on Arbitration, Conciliation and Mediation, an arbitrator is liable for damages caused if they step down having initially accepted appointment or if they act dishonestly or fraudulently during the arbitration process.[6]  In Angola, arbitrators are liable to pay damages if they unjustifiably withdraw from their role or cause undue delay in rendering an award.[7]

Conversely, arbitrators appointed pursuant to the CCJA pursuant to the OHADA Treaty enjoy a stronger immunity as they are accorded diplomatic immunity. Meanwhile, countries like Egypt do not have express statutory provisions for arbitrator immunity, though the principle is invoked by analogy to judicial immunity.

In sum, the lack of uniformity on arbitrator immunity creates uncertainty and undermines the predictability of arbitration procedures across the continent, potentially deterring investors who seek a consistent legal framework.

Tension between accountability and independence

Arbitrator immunity protects arbitrators from personal liability, ensuring they can make independent decisions without fear of legal retaliation. If immunity is too broad, however, it may shield arbitrators from accountability when ethical breaches or corrupt practices occur. 

For example, under the Kenyan Arbitration Act, arbitrator immunity only applies when the arbitrator is acting in good faith. The Act, however, does not define good faith, leaving room for interpretation.[8] Generally, good faith implies honest dealing, meaning arbitrators may be protected for grave errors, provided they can show that such errors were unintentional. In civil law countries like Mozambique, arbitrators can be held liable under civil law for damages caused by their actions, emphasizing accountability over immunity.

Evidently, common law jurisdictions prioritize arbitrator independence while civil law jurisdictions impose measured accountability without undermining arbitrators' discretion. This tension between promoting independence and ensuring accountability highlights the need for a harmonized approach.

Strengthening the applicability of arbitrator immunity in Africa

Harmonizing arbitrator immunity

A harmonized regional framework would provide consistency, reduce jurisdictional uncertainty, and enhance Africa’s appeal as an arbitration hub. Although regional organisations such as OHADA have made significant strides, further efforts are necessary. One potential avenue is the Protocol on Rules and Procedures on the Settlement of Disputes under the African Continental Free Trade Agreement (AfCTA). Currently, the Protocol is silent on the question of arbitrator immunity, but it could serve as a platform for a unified approach. 

Establishing clear exceptions to immunity

While arbitrator immunity and independence are critical, it needs to be balanced with holding arbitrators accountable for negligence, bias, or failure to act diligently.  The current ambiguity allows room for arbitrators to avoid liability for significant errors. Immunity should not protect arbitrators from serious ethical breaches or professional misconduct, such as undue delays in progressing arbitral proceedings. Arbitration laws should establish well-defined exceptions to immunity, ensuring arbitrators remain accountable for wrongful conduct such as acts of bad faith, fraud, or gross negligence.

Conclusion

The above analysis has shown that African jurisdictions have adopted a fragmented approach to arbitrator immunity, which creates uncertainty and potentially undermines investor confidence in arbitration.

To foster arbitration as a preferred dispute resolution mechanism, African countries must advocate for a harmonised framework through regional bodies like OHADA, Southern African Development Community (SADC), the East African Community (EAC) and the AfCFTA Protocol. Additionally, clear statutory exceptions to immunity—covering bad faith, fraud, and gross negligence—would ensure accountability while preserving arbitrator independence.

A harmonized approach on key arbitral concepts such as enforceability and immunity would assist investors in making decisions to invest across the African jurisdictions, particularly where they want to engage in cross-border transactions.  

[1]    US Legal, Inc., “Arbitral Immunity Law and Legal Definition | USLegal, Inc.” <https://definitions.uslegal.com/a/arbitral-immunity/>  accessed 25 February 2025.

[2]    ‘Challenges with Recognition and Enforcement of Arbitral Awards in Africa’ <https://www.ibanet.org/challenges-with-recognition-enforcement-arbitral-awards-Africa> accessed 25 February 2025.

[3]    Section 16B of the Arbitration Act Cap 49 Laws of Kenya <https://new.kenyalaw.org/akn/ke/act/1995/4/eng@2022-12-31> accessed 26 February 2025.

[4]    ‘Section 13, The Nigerian Arbitration and Mediation Act 2023 https://www.lawyard.org/wp-content/uploads/2023/05/Arbitration-and-Mediation-Act.pdf accessed 26 February 2025.

[5]     Articles 48 and 49 of the OHADA Treaty. 

[6]     See Articles 21(5), 22 (4) Ethical Code of Arbitrators, Law n◦11/99.

[7]     See Articles 9(3) and 25(3) of the Angolan Law No 16/03.

[8]     See Section 16B(1) of Kenya’s Arbitration Act Cap 49.