As an independent practitioner, Dr. Kodo has acted as co-arbitrator in Investor-State disputes and as sole arbitrator and counsel in commercial and construction disputes.
In 2021, as a Consultant for the Investment Climate Reform (ICR) Facility (co-funded by the European Union, the Organization of African, Caribbean and Pacific States and implemented by Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH – GIZ, the British Council – BC, Expertise France – EF, and Stichting Nederlandse Ontwikkelingsorganisatie – Netherlands Development Organisation, SNV), Dr. Kodo revised the Arbitration Rules of the National Centre for Arbitration, Conciliation and Mediation (CENACOM) of Kinshasa, Democratic Republic of Congo, and also trained more than eighty arbitrators of the centre.
Since we last spoke to you, what significant work have you undertaken?
Since we last spoke, I have been involved in four new arbitration proceedings involving several major arbitration centers from Europe and Africa (including, but not limited to, the ICC, Paris – France and the arbitration Center of the Common Court of Justice and Arbitration of the Organisation for the Harmonisation of Business Law in Africa – OHADA). The language chosen by the parties in three of those proceedings is English and the fourth is in French. I serve as sole arbitrator in two of those proceedings and as president of a panel of three arbitrators in two of the proceedings. In one of the latter two proceedings, I am presiding a tribunal to decide a case where the amount at stake is more than 102.000.000 USD. It is, so far, the highest amount I must decide as arbitrator, but also the first time I am presiding over a panel for such amount. I take the full measure of the responsibility I’ve been entrusted with, and more than ever, I am determined to be very efficient in the process.
What do you consider to be your greatest achievements of the past 12 months?
In addition to my most significant presidency of an arbitral tribunal so far (considering the amount at stake and complexity of the dispute), as mentioned above, my services have been requested as an expert witness in a complex litigation case in Asia and involving an African party. I have been admitted to practice law in the Democratic Republic of Congo (DRC), beside the Bar of Paris, France. I have also been involved in teaching law (arbitration and other matters) in Europe, in the Indian Ocean and in Africa. Finally, the fifth edition of the “Code Pratique Francis Lefebvre OHADA: Traité, Actes uniformes et Règlements annotés” (Editions Francis Lefebvre, France), a treatise on the OHADA legislation useful for all the practitioners, scholars and judiciary, has been released late November last year.
Of the many skills that you have had to develop in order to excel in your field, which would you say are the most important to your success?
Thoroughness in every aspect of my work, whether as counsel or as arbitrator; openness of mind, which allows me to craft genuinely authentic solutions while sitting as arbitrator or to offer those when I’m counsel; loyalty and devotion to my clients, as counsel and to parties as arbitrator. I would never emphasize enough the importance of very hard work, consistently. Also, genuine leadership and humility are essential qualities I cannot depart from, especially when I’m presiding over a tribunal where my co-arbitrators are sometimes more experienced and/or even more qualified than me.
How have you developed these over your years in practice?
It requires hard work, determination, a lot of modesty and consistency to develop such qualities over the years, sometimes by learning from one’s own mistakes or from those of your peers when they come to one’s knowledge.
What advice would you give to parties and counsel on how best to select an appropriate arbitration centre?
It starts with retaining smart, competent, and ADR-savvy lawyers when entering into a contract or an agreement because, in most cases, arbitration centres are chosen in the arbitration clauses included in major contracts. It is at that early stage that care needs to be taken in the selection of the dispute resolution provision of an agreement. Implementing this advice may be challenging since many lawyers who draft contracts are not ADR specialists and may not always be aware of the pitfalls of some arbitration centers. In any event, to the extent possible, one should consider the track records of an arbitration centre, i.e., its practices regarding appointment, conduct of the proceedings, its arbitration rules, the availability or not of legal remedies (in the rare but non-inexistent cases in which it may become necessary to refer to courts of law to remove the blockage created by some incompetent arbitration centres).
Given your great experience, what are the most common mistakes that you see counsel make during ADR?
The most common mistakes include: accepting cases they are not competent to handle and not associating experienced counsel to handle such cases efficiently; accepting cases in languages in which they can barely hold a conversation, let alone draft legal documents (Nb: keep in mind that being able to hold a basic conservation in a foreign language does not, in itself, qualify someone to properly represent a client in proceedings – before an arbitral tribunal or a court of law); showing up to meetings and hearings unprepared; failing to properly and timely raise appropriate objections that may help their client; ineffective communication with the client.
How can these mistakes be avoided through advance preparation or adopting a new strategy?
As mentioned above, good training and strict compliance to ethical and professional rules (such as not accepting a case one is not competent to handle). For clients, knowing who to hire as counsel may spare them a lot of troubles and disappointments since, in many cases, it may be difficult, even impossible, to salvage proceedings which are ruined by incompetent counsel.
Can you share anything about the projects that you are currently working on?
I can only say at this stage that I am still preparing some training materials for arbitrators and working on several publication projects.
About Jimmy Kodo, FCIArb
Dr. Mahutodji Jimmy Vital KODO, Attorney at law (France), Member of the Permanent Court of Arbitration (PCA – The Netherlands); the Africa Commission of the International Court of Arbitration of the International Chamber of Commerce (ICC – France); the Singapore International Arbitration Court Users Council (SIAC – Singapore). Former Technical Advisor to the President of the Common Court of Justice and Arbitration (CCJA) of the Organisation for the Harmonisation of Business Law in Africa (OHADA – Côte d’Ivoire). Dr. Kodo published the book Arbitration in Africa under OHADA Rules (Kluwer, 2020).
Published by www.lawyer-monthly.com