At this early stage in ACLF’s work, we are focussed on developing practical methodologies for accessing, collating and analysing comparative information on African commercial law systems. The challenges we face fall broadly into two categories: data collection and analytical method.
The publicly available information about the structure and functioning of commercial courts in individual jurisdictions is often of a fairly general and abstract nature. How do these systems work in practice, and what quality of justice do they deliver? What data do we need to collect to answer those questions, and where do we find it? Document review will be an important part of the exercise, but will not be sufficient in itself. Observation and interaction with legal professionals on the ground will play a key role: we envisage that much of this work will be undertaken in collaboration with African universities.
What are the essential elements which determine the quality of a commercial law system from the point of view of its potential users? A non-exhaustive list would include: simplicity and transparency of the litigation process; quality and clarity of court paperwork; quality and integrity of judicial decision-making; quality and cost of legal representation; time taken for cases to come to trial; timely enforcement of judgements and arbitral awards. What weighting should be given to these respective elements, and how should comparative data be most usefully and objectively presented? Potential users of legal systems will have an understandable preference for succinct comparative information and clear conclusions, but an overly reductionist approach or scoring system may generate misleading comparisons. In developing our approach to these methodological challenges we will draw on existing comparative studies of legal systems, including the work of the European Commission for the Efficiency of Justice.