Building the bench: A conversation with Lise Bosman

You have a genuinely unusual career path. Can you take us back to where it all started?

I grew up in South Africa. My family is a mixed English–Afrikaans family with a medical, farming and academic background. I spent the first years of my life in the Free State in the metropolis of Welkom and then went to high school in Johannesburg and university in Cape Town.

I was at UCT in those last few years before the democratic transition, so I was involved in campus politics. It was an exciting but challenging time, and one that forced people to think carefully about where they stood. One of the things I took from my law studies at UCT was that idea that sits at the heart of any legal system: the rule of law, and the possibility of using law as an instrument of social justice.

After graduating, I worked at the Legal Resources Centre in Johannesburg. I then received a scholarship to study international law in the US, which was a fantastic experience and gave me the chance to reflect on what I had experienced as a student and a young practitioner in South Africa, and to compare that with the experiences of the international students in my class. That's what led me, indirectly, into arbitration.

While I was at Notre Dame, Stephen Schwebel, who was then the US judge on the ICJ, came to give a seminar. I spoke to him afterwards and asked about the job prospects for a South African lawyer in international law in the Netherlands. He said, "When you come, just give me a call". Which is what I did. He put me in touch with a judge at the Iran–US Claims Tribunal. I ended up working there as an adviser for three or four years as a young practitioner. That brought me into contact with international arbitration practice and with the UNCITRAL Arbitration Rules, because the Iran–US Claims Tribunal was the first institution that applied those rules in their entirety.

From there I moved into commercial practice in the Netherlands, and then into international organisations. One of those is the Permanent Court of Arbitration; another is ICCA.

Many people are unfamiliar with what the PCA actually does. Can you explain it?

The PCA is a very old dispute resolution organisation established in 1899 through treaty. It has a fantastic origin story. In the 1890s there was already an arms race taking place among various European powers. In this context, Tsar Nicholas II of Russia convened the first Hague Peace Conference, which led to the establishment of the Permanent Court of Arbitration, intended to be a forum for resolving disputes between states.

The PCA has grown dramatically since then. It now administers cases involving states, state-owned entities, or international organisations, including investor–state disputes. In fact, the PCA now administers nearly as many investor–state disputes as ICSID does in Washington.

The PCA doesn't decide cases itself. It acts as an administering institution, with separate tribunals appointed to determine individual disputes. That is also a point of confusion for AFSA: people hear the word "court" and assume we're competing with state courts. We are not. The AFSA International Court performs a review function. It does not replace the arbitrator’s judgment; it checks that awards are capable of enforcement internationally.

You were approached by AFSA to become president of the International Court. What drew you to the role?

I have worked on the development of arbitral practice on the African continent for over fifteen years. I have published a book on arbitration in Africa, done academic work, and through ICCA, contributed to law reform processes and the redrafting of rules for African arbitral institutions. I was actually pulled into AFSA through the international rules drafting project in 2020 and 2021 and became more and more interested in the institution.

It also fits with a broader commitment of mine. I really believe it is important to develop strong arbitral institutions on the African continent, and AFSA is exceptionally well-placed to play that role. It is already the strongest institution in South Africa, and in the region, and it has the potential to become a genuinely global player.

After having done mostly semi-academic and policy work for a long time, I thought it was time to engage more fully in an active institution and contribute to that.

Let's get into the mechanics of the AFSA court itself. What does it actually do?

The idea of a court within an arbitral institution may have been unfamiliar in the South African market, but it's very common internationally: the ICC in Paris has a court, and the LCIA has a court. The role of the court is not to decide cases, as that remains the responsibility of the arbitrators appointed by the institution or the parties. The court provides quality control. It acts as a guardian of the rules and resolves tricky procedural issues.

Our most important functions are the appointment of arbitrators, challenges to arbitrators, and the review of draft awards. When we look at an award, we're not looking to replace our judgment with that of the arbitrator. We're looking to make sure that that award will be internationally enforceable under the New York Convention. That means it needs to include all the elements required by the Convention, that it's reasoned, and that it reflects that the tribunal has followed the due process requirements that will be examined by the enforcing court.

The ICC court is viewed internationally as quite interventionist: they're not shy of making recommendations to arbitrators about the reasoning of awards. That's not the approach of the AFSA court. We start by going through the AFSA checklist, which sets out all the necessary formal elements that need to be in an award. Then we look to see whether it is reasoned, not whether we agree with the reasoning or the conclusion. That's not our role. And we look to see whether the draft award reflects the due process requirements that will come up in any enforcement proceeding under the New York Convention.

Generally, the quality of the draft awards we see in the court is very high. They are well reasoned and thorough, and they come to carefully considered conclusions. What we sometimes see, however, because of the background of some arbitrators, is that awards can look rather more like court judgments than arbitral awards. That is something we are there to flag.

On the day-to-day side, the president and vice presidents meet on video call once every two weeks to work through the issues that have arisen: policy matters, potential guidance notes, and questions from the secretariat. We resolve a number of difficult issues in those meetings. The court currently has nineteen members, each with different backgrounds and areas of expertise, so when a question requires specialist input, we draw on the relevant members.

South Africa has a strong domestic arbitration tradition, but you've observed some particular tensions as the international track grows. What is your read on where things stand?

South Africa starts from a strong position because it has a well-established domestic arbitration practice. There is a strong tradition of using and trusting arbitration in this country, which is a real advantage. It is not unusual, however, for domestic and international cases to be administered differently.

South African arbitration practice is still in transition. The International Arbitration Act 2017 was a real watershed for the country. Under the old legislation, it was difficult for attorneys to explain to their clients, particularly international clients, that South Africa was a reliable seat of arbitration, even though the courts were generally arbitration-friendly. The new Act makes that case much easier.

What I have tended to see internationally is that, in a situation where there are different systems for domestic and international arbitration, the more modern practice starts to predominate. I would expect practices derived from international cases and from the 2017 Act to influence domestic practice in South Africa, and ultimately for the two to converge.

One project we have discussed within the court is whether AFSA’s domestic commercial rules should be redrafted to align with the international rules, or whether AFSA might ultimately move to a single set of rules. I would be in favour of that.

What advice do you give to young and emerging practitioners who want to break into arbitration?

Many of my students at UCT — often aged between twenty-four and twenty-eight — ask how to become an arbitrator. The answer is complicated, and it starts with this: it takes time.

The typical path for arbitrators is to begin as counsel in arbitration proceedings. Very young practitioners often start as tribunal secretaries before they have decision-making authority themselves. That experience usually takes place within the context of law firms, the Bar, or academia. You establish a reputation as a dispute resolution specialist, and then build that reputation by attending conferences and seminars, offering to speak at events, writing and blogging, and becoming known in the field.

I'd encourage people to see the pathway quite broadly, because you don't have to be in private practice to develop arbitration expertise. Some students go back into practice after their LLMs. Some go into government. Some go to the bench. An obvious path would be to find a firm with a strong dispute resolution practice and apply there. Another path would be to find some sort of internship or fellowship, either with an international firm or with an arbitral institute. Quite a lot of arbitral institutes outside of South Africa have strong internship and fellowship programmes, and that's a really good way to get experience.

Writing and blogging is an accessible way of getting your name and ideas out there. Joining organisations matters too. Young AFSA runs excellent workshops. Young ICCA has an extensive skills training programme and a structured mentoring programme that puts around eighty young practitioners through a two-year cycle every year. There are also scholarships to LLM programmes available in Young ICCA's name.

One of the goals of my UCT course is to help students develop an international outlook: to become comfortable working in a space where you are not simply applying national legislation and national case law. They need to look beyond national law to other jurisdictions, international treaties and to international practice. That requires a shift in mindset.

It also requires a willingness to just get involved: attend seminars, write, volunteer for committees, help organise events, and become known as someone who is serious about the field and has something to contribute.