‘African Disputes Should be Arbitrated in Africa’

0
308
Adedoyin Rhodes-Vivour

As the Chartered Institute of Arbitrators Nigeria Branch, held its 2017 Annual Conference in Lagos last week, the Chairman of the Institute, Adedoyin Rhodes-Vivour delivered her Welcome Address, discussing frontline issues in Arbitration and ADR in Africa, and soliciting the support of the three arms of Government, to enhance Arbitration in Nigeria
Welcome

Your Excellency the Executive Governor of Lagos State, Honourable Justices of the Court of Appeal, the Honourable Chief Judge of Lagos State, My Lords, the Attorney-General of Lagos State, President, Nigeria Bar Association, Heads of Professional Organisations, Distinguished Ladies and Gentlemen.
It gives me great pleasure to welcome you on behalf of the Chartered Institute of Arbitrators Nigeria Branch, to the 2017 Annual Conference holding in Lagos, the Centre of Excellence. Our Institute, an international organisation, with branches in over 133 countries of the world, is eminently considered worldwide, as the gold standard in arbitration education and training.

About the Institute

The Institute was established in 1915, to provide a membership organisation for arbitrators, with a view to raising the status of arbitration to the dignity of a distinct and recognised position, as one of the learned professions. The vision of its founding fathers has been actualised, and today the Institute has a growing membership composed of 15,000 members across 133 countries, and supported by an international network of 38 Branches across all 6 continents of the world. A few months back, the Institute announced its 15,000th member, a member from Singapore. Today the Institute is eminently regarded as the world’s leading centre of excellence, for the promotion and facilitation of dispute resolution.

The Nigeria Branch, is one of the global body’s fastest growing branches. The Branch was approved in 1999, and today we have Chapters in Abuja and Port- Harcourt, and hope to have other Branches within the country in the near future. We have over 1137 members, thus, availing users a choice of highly trained and experienced arbitrators and mediators of international repute. Our members are represented on the major international arbitration institutions and organisations such as International Centre for Settlement of Investment Disputes (ICSID) headquartered in Washington D.C United States of America; International Chamber of Commerce (ICC) Paris; The Permanent Court of Arbitration (PCA) The Hague, Netherlands; London Court of International Arbitration (LCIA) London and International Council for Commercial Arbitration (ICCA) The Hague, Netherlands.

Our Branch collaborates with institutions with similar objectives, in the interest of furthering arbitration and ADR, as the preferred means of dispute resolution. We are committed to advocating a conducive environment in our jurisdiction, for the practice of ADR.

The Institute provides education and training for arbitrators, mediators and adjudicators. It also acts as a global hub for practitioners, policy makers, academics and those in business, supporting the global promotion, facilitation and development of all ADR methods.

Annual Conferences

Our Annual Conferences have been held for the past 17 years. Our conferences are intellectually stimulating, and create an opportunity for discussion amongst all players in the field, including practitioners from diverse backgrounds, both within and outside our shores. Our priority is to ensure that arbitration and alternative dispute resolution, continue to meet the needs of users and the challenges of modern times. We consider ourselves privileged, to have such a distinguished gathering with us.

The 2017 Conference

The theme of our 2017 Annual Conference is “Strengthening the Building Blocks of Arbitration in Africa.” Africa has come of age, and has emerged as a major player in the international arbitration field. Its role has changed from being a ‘user’, to being an active participant in all its ramifications. There is a growing number of African Arbitral Centres, across the African region. Visionary African Governments, are working to develop their countries into arbitration hubs, with the realisation that an internationally recognised arbitration hub, sends the right message to investors. A perception of political and legal stability, a stable and transparent judiciary, a secure and safe environment, gives investors the confidence to invest.

African lawyers, have realised the importance of developing specialist arbitration skills. Africans are now actively calling for African disputes to be heard in Africa, and not exported to international centres. We have moved beyond the times where arbitration involving African parties, were arbitrated upon mainly by non-Africans. There are calls within Africa for modern arbitration laws, an up-to-date legal framework. We have developed expertise in the field, we are building capacity, we have set up arbitral institutions, we have acquired training and education of international standards, and many Africans have developed international reputations in the field. Yet, there is still more to be done. We need to build on the efforts thus far.

Frontline Issues in Arbitration and ADR in Africa

The 2017 Conference, is focused on contemporary frontline issues in Arbitration and ADR in Africa. The topics have been carefully chosen to give insight to the challenges facing the development of arbitration in Africa. Enforcement of arbitration awards, remains a major challenge and ensuring that arbitration is divorced from a negative perception as a first step before litigation, is critical.

Developing the mindset that arbitration agreements and awards are to be respected, is vital to the continuing efficacy of the process. Is the Nigerian court system perceived as efficient, in line with global standards? Are our courts international in outlook, commercial in skill, and with a clear understanding of arbitration? Honourable Justice James Allsop of the Federal Court of Australia stated that, “the success of any particular jurisdiction as it pertains to international commercial arbitration depends on the quality and qualities of its commercial courts”. The Hon. Justice emphasised that Commercial courts, as supervising seat courts and as enforcing courts, are a critical integer in the successful operation of the international commercial arbitral legal order. Ensuring that the process is transparent, cost effective and expeditious, are vital.

Is protectionism good for Africa or is it an obstacle to the growth of international arbitration in Africa? The effect of protectionism, positive or negative, needs to be carefully considered and the way forward charted. Do we sincerely appreciate the impact of arbitration-friendly regimes, on the socio-economic wellbeing of our citizens? Is our legislative framework of an international standard, one which engenders the confidence of investors and all users? The power of Nigerian courts, to issue anti-arbitration injunctions restraining the continuation of foreign arbitral proceedings, in the light of the Court of Appeal’s decision in SPDC v CRESTAR INTEGRATED NATURAL RESOURCES LIMITED 2016 9 NWLR Part 1517 Page 193 where the Court held that being an international arbitration, the provision of Section 34 which prohibits the intervention by the courts, (except as provided under the Act), is not applicable to foreign arbitration? Have all obsolete arbitration laws been repealed? Are we keeping up with the challenges of arbitration in the digital age, and properly utilising modern forms of technology to advance the practice of arbitration? Online Dispute Resolution (ODR), is being promoted for quickly, efficiently and conveniently resolving disputes. It avoids face to face meetings and costly travel time and expenses.

The next two days, provide the opportunity to discuss, identify challenges and proffer ways, to advance arbitration in Africa. Our hope is that we can all together place Africa on the world map of arbitration and meet the standards of the traditional centres; London, Paris, New-York, and the successful emerging centres like Singapore, in the quest for effective alternative dispute resolution systems.

Government Support:

Executive

The Arbitration Community cannot do it alone. The support of the three arms of government, is essential. The Executive needs to invest in making their jurisdictions attractive for arbitration, by ensuring the security of lives and property, investing in first class infrastructural development, and strengthening the judiciary.

Recently the Vice-President of Nigeria, Prof. Yemi Osinbajo, SAN, signed 3 Executive Orders, to enhance the way business is conducted in the country. The Orders included one on “Visas on arrival”. The Order emphasised that the process of obtaining visas on arrival, is to be carried out in a transparent manner, and that all visas on arrival at Nigerian ports are to be granted once applicants have met the requirements. This is commendable, as ease of obtaining visas is essential in a place seeking to become an arbitration hub. Ensuring effectiveness and transparency in the visa processing systems in all our Foreign Embassies and High Commissions, is a critical issue which also needs to be addressed.

The President of the Federal Republic of Nigeria, President Muhammadu Buhari GCFR, at the recent 9th Summit of the D8 meeting in Turkey, spoke on the inter- relationship between trade/investment and economic development in a nation. Our President reiterated that, trade is the engine room of economic growth and development. The President urged D8 leaders, to prioritise incentives and measures aimed at improving trade and investment among member countries. The President reiterated Nigeria’s commitment to creating an enabling environment, and making Nigeria attractive for trade development. It has long been recognised that economic growth thrives in an atmosphere of an efficient and effective judiciary, one which has gained total confidence by the public and investors, in its ability to provide expeditious dispensation of justice and provide support for arbitration and ADR mechanisms (the preferred option for investors).

Judiciary

During the swearing-in of the incumbent Chief Judge of Lagos State, Honourable Justice Opeyemi O. Oke on the 20th day of October, 2017, Governor Akinwunmi Ambode, the Executive Governor of Lagos State, expressed his desire for speedier dispensation of justice, and the establishment of commercial courts, to enhance access to justice. One of the greatest challenges of Nigerian arbitration, is the nightmare of arbitration cases being locked in the court system for several years, and getting enmeshed in the very court system parties sought to avoid, by entering into a private agreement for resolving their disputes through arbitration. The Executive Governor of Lagos State, challenged her Lordship on her dream of a faster court system.

The Chief Judge, Honourable Justice Opeyemi O. Oke, rose to the challenge and her key vision includes, the dream of making speedy dispensation of justice a hallmark of the Lagos State Judiciary. She expressed her commitment to clear the back log of cases before the court system and is resolved as part of the drive towards improving the administration of justice in Lagos State. “To create a specially dedicated ADR court as a coordinate dispute resolution complex, where mediation, negotiation and conciliation, will be adequately used to clear backlogs and settle disputes”. We are confident that the Chief Judge appreciates the special nature of arbitration procedures and the resultant awards, and urge her Lordship even if by way of practice directions, to direct all Judges to ensure that arbitration cases and applications are decided within strict limited time frames, with a view to ensuring the efficacy of the process. Our membership, composed of seasoned arbitrators and mediators, looks forward to working with the judiciary on a speedier court system.

A supportive judiciary, is essential to the continuing efficacy of arbitration as an effective and attractive dispute resolution procedure. The support of the judiciary is required prior to the process, during the process, and after the resultant award has been issued. The international standard is that, the judiciary supports and does not interfere in the arbitration process. Nigerian courts largely support arbitration, affirming the principle of non-intervention, as several judicial authorities affirm.

Recently the Chief Justice of the Federal Republic of Nigeria, Hon. Justice GCON, spoke against courts indulging parties who in breach of arbitration agreements, commence litigation proceedings. The Chief Justice, emphasised the importance of arbitration in encouraging foreign investment, and pronounced that arbitration needs the support and encouragement of the judiciary.

The Practice Directions issued by the CJN, goes a long way in support of the principle of non-intervention, and discouraging the antics being used to frustrate otherwise legitimate arbitration agreements and the resultant awards. Our court decisions in arbitration related matters, are a major influence in the perception of users both within and outside our country, and an indication of how conducive our legal climate is towards arbitration. A negative perception not only equates to negative attitude towards stipulating our country as the seat of the arbitration, but impacts on the perception of our country as a favoured investment destination by genuine investors.

The echoes of IPCO (NIGERIA) LTD v NNPC 2008 APP.L.R. 04/17, continues to resonate on Nigeria, in the international arena. In the matter before the English Commercial Courts a revered Nigerian Jurist, the late Honourable Justice Kayode Eso, JSC, had concluded in his expert report to the Court )in proceedings relating to the enforcement of an arbitral award made in Nigeria and which was embroiled in challenge proceedings before a Nigerian Court), that “The mill of Justice can grind very slowly in Nigeria. In particular, Nigeria is not yet geared towards arbitration in a manner which meets the international standard it agreed to when adopting the New-York Convention. In this regard, the Government of the Federal Republic of Nigeria, had very recently set up a committee to examine the existing system, and make recommendations towards the modernisation of the arbitration law and practice in Nigeria, in an attempt to make it meet those international standards”.The case subsequently, went before the English Court of Appeal. The Court of Appeal relied on the evidence of another revered Nigerian Jurist, the Hon. Justice S. M. A. Belgore, JSC, former Chief Justice of the Federation, who testified as follows “It was conceivable that there will be no fixed determination of the issue of whether the arbitral award will be set aside for twenty or thirty years or longer”.IPCO (NIGERIA) LTD v NNPC (No.3) 2015 EWCA Civ 1144 & 1145. The English Court of Appeal deemed this situation absurd and inconsistent with the principles of the New-York Convention. Consequently, the English Court of Appeal, ordered that IPCO should be able, in principle, to enforce the award notwithstanding the existence of challenges to it in Nigeria, given the significant delay in resolving these challenges before the Nigerian Courts. This case is considered as the first English recorded appellate decision, where a New-York convention award creditor, has been permitted to enforce an award on the basis of extraordinary delay, irrespective of the bonafide challenge and the juridical seat of the arbitration (Nigeria).

What a catastrophe!! We are assured that Lagos State, our commercial nerve centre, is fully committed to changing the perception and leading us to a new judicial era in the State, in line with the vision of the Chief Judge and the Executive Governor of Lagos State, and will set the pace as usual for all other states to follow.

Legislature

The support of the Legislature, is essential, in ensuring an up to date legal framework for arbitration and ADR. The Institute has been in the forefront of advocating for the reform of Nigeria’s Arbitration Laws, in line with the UNCITRAL Model Law 2006 and other modern developments. A Stakeholder Committee under the initiative of the Branch, was constituted sometime in April 2015, to review the current Arbitration and Conciliation Act, and propose a strategic plan for the reform of the Arbitration and Conciliation Act. The stakeholder committee, was a subsequent effort to the efforts earlier made by the then Federal Attorney-General, Chief Bayo Ojo, SAN (Past Chairman of the Institute), who constituted a committee in 2005 with the mandate to submit proposals for the reform of Nigeria’s arbitration and ADR laws. The work of the committee, resulted in the draft Arbitration Act and the proposed uniform States Arbitration and Conciliation Law, to be recommended to States for adoption. Due to the fact that the law was not passed, the Branch in collaboration with other arbitral institutions, have continued to advocate relentlessly for the necessary reform of the Federal Arbitration and Conciliation Act.

The National Assembly of Nigeria held a public hearing on the Arbitration and Conciliation Act Cap A18 LFN 2004 (Amendment) Bill, 2017 (SB. 427) on the 12th day of June, 2017. Subsequent to the Public hearing, the Senate Committee invited the Arbitral Community to come up with a harmonised Bill, in view of the comments received at the hearing. The aim of the arbitral community, is to ensure that Nigeria has a modern arbitration law, which will stand it in good stead to attract international investors, and emerge as a favoured place of arbitration. Subsequently, the National Assembly Business Environment Roundtable (NASSBER), invited members of the arbitral community to a working group on the Reform of the Arbitration and Conciliation Act, 1988.

We remain hopeful that, a reviewed Amendment Bill will soon be passed into Law. The new Law will remove from Nigeria’s statute books the current Act based on the 1985 UNCITRAL Model Law and the 1976 Arbitration Rules, and will be substantially based on the 2006 UNCITRAL Model Law and the 2010 UNCITRAL Arbitration Rules, thus, further bringing Nigeria into the realm of countries with an up-to-date legal framework. We commend the Lagos State of Nigeria, which as far back as 2009, passed the Lagos State Arbitration Law (LSAL), the most up-to-date arbitration law in Nigeria, one based on the 2006 UNCITRAL Model Law.

Strengthening the building blocks of arbitration in Africa, requires qualified and experienced arbitration practitioners and strong arbitration institutions. The International Council for Commercial Arbitration (ICCA), in cooperation with the Permanent Court of Arbitration (PCA) The Hague and the United Nations Commission on International Trade Law (UNCITRAL), has been pivotal in initiating consultations between African arbitral institutions, to deal with the challenges of limited cooperation and coordination amongst African arbitral institutions. The Chartered Institute of Arbitrators Nigeria Branch, has keyed into this initiative, and various consultation meetings have been held, with a view to exchanges which will lead to cooperation that will enhance and promote the practice of international arbitration in Africa. The first consultative workshops held, laid the foundation for stronger collaboration among African arbitration practitioners and institutions, and exposed various areas in which further collaboration will be valuable. Further consultation is on-going, and expected to yield the required results with the dedication of us all.

Appreciation

Finally, I commend all those who have made this Conference possible, either through their financial support, or other various resources including their time. We are grateful to our members, who assiduously commit their time and resources to the work we do. May I mention particularly my colleagues on the Executive Committee, members of staff of the Secretariat under the leadership of our General Manager, members of the conference planning committee, members of our other various committees and our approved tutors.

Your Excellency, The Executive Governor of Lagos State, My Lord the Chief Judge of Lagos State, Distinguished ladies and gentlemen, I welcome you all to the 2017 Annual Conference of the Chartered Institute of Arbitrators, and wish you two days of insightful and enlightening discussions, concluding with our Gala Nite when our new members will be inducted, and we can all take time to relax together in Lagos, the commercial nerve centre of Nigeria.

I thank you all.

Mrs. Adedoyin Rhodes-Vivour, C.Arb, CEDR [UK] Accredited Mediator, Chairman Chartered Institute of Arbitrators Nigeria Branch