Developing a robust International Commercial arbitration framework for Somalia : lessons learned from the Malaysian and the United Kingdom Experiences

Abstract

The phenomenon of globalization and the substantial interdependency observed in various facets of contemporary life have rendered commercial disputes virtually inevitable owing to the extensive commercial engagements among nations and corporations. Somalia finds itself in a post-conflict phase following a prolonged civil war and subsequent state disintegration. Given the abundant and diverse untapped resources within Somalia, coupled with the considerable international attention from governments and major corporations concerning trade and investment collaborations, the establishment of sophisticated legal and dispute resolution frameworks becomes imperative. At the global level, the United Nations Commission on International Trade Law (UNCITRAL) assumes a pivotal role in expediting the advancement and standardization of international trade through both formal and informal channels. The 1985 UNCITRAL model law serves as the fundamental basis for handling international commercial disputes, with various countries opting to either adopt it or develop separate national commercial arbitration systems inspired by it. In Somalia, the increasing commercial engagements and the absence of specific legal tools to manage trade and investment disagreements call for the establishment of a robust commercial arbitration framework. Furthermore, this framework can serve as a catalyst for attracting foreign trade and investment, as well as a mechanism for resolving disputes arising from the commercial interactions. The legal system in Somalia is currently in a state of underdevelopment and is predominantly reliant on a variety of formal and informal legal sources. This lack of proper harmonization leads to significant challenges and discrepancies. Consequently, this study aims to analyse the identified gaps in commercial dispute resolution within Somalia by drawing insights from global best practices, particularly those observed in the United Kingdom and Malaysia. To address this objective, the study adopted qualitative approach combining both primary and secondary data utilizing key informant interviews and analysis of the existing documents on the field. The studyproposes the establishment and implementation of necessary institutional reforms and adequate legal frameworks for the country to better regulate trade and investment matters in an advanced manner.