Ajogwu: Arbitration, Other ADR Should Be Seen as Helping Our Courts

Professor Fabian Ajogwu (SAN) is the founding Partner of Kenna Partners, a leading multi-service law firm. He has almost three decades of law practice experience in commercial litigation and arbitration in financial services, telecommunications and natural resources sectors. Recently, he was elected President and Chairman of the Governing Council of the Nigerian Institute of Chartered Arbitrators. In this interview with Sunday Ehigiator, he speaks on not just his vision for the Institute but how he hopes to promote arbitration and leverage technology to improve its processes in Nigeria

Congratulations on your recent emergence as the President and Council Chairman of NICArb, how does it feel to step into the big shoes left by your predecessor, the revered Chief Afe Babalola, and also share with us your vision as regards the institute?

My gratitude is first to the Almighty God. I greatly appreciate the eminent members of the Governing Council of the Nigerian Institute of Chartered Arbitrators and the very able management led by the CEO, Mrs Shola Oshodi-John.

I think the shoes I am stepping into is not one but a plurality of shoes given the people who have occupied this position since the inception of the Institute. Beginning with the pioneer president and former Attorney General of the Federation Judge Bola Ajibola (SAN), the subsequent President, Honourable Justice Kayode Eso JSC, of blessed memory and our immediate past president and one of the foremost lawyers in Nigeria, Aare Afe Babalola (SAN).

I am indeed honoured to be given the opportunity to pilot the affairs of such a great Institute. Still, I would rather say that those very big shoes have paved the way for bigger aspirations for us in terms of our focus on growing alternative dispute resolution in Nigeria, and the West African region. It is much to their credit that they have done the significant work that has positioned our Institute as the foremost ADR Institute in the country. This is both in terms of the quality and diversity of membership, quality service offerings and diversity of membership across different regions and professions. From a numerical perspective, it is the largest ADR Institute in sub-Saharan Africa.

What this opportunity does is that it enables us to build upon the solid foundation and the institutional edifice that these three extraordinary gentlemen have provided.

I plan to strengthen the governance within, which should drive the Institute to yet one more level of broadening its reach and impact in Nigeria and beyond. This will include domesticating significant arbitration cases, strengthening the capacity for domestic arbitration and international arbitration within our institute, and leveraging technology to step up in the service delivery for disputants, members and all other stakeholders of our institute.

In a nutshell, the overview is to increase our impact and reach, and leverage all that has become available in the past few years, in terms of technological advancement and systems to enhance the lot of ADR.

Your institute is one the bodies promoting the resolution of disputes through arbitration/ADR; how would you rate the acceptance of this resolution means in Nigeria? Are there sufficient legal and institutional framework for efficient practice of arbitration and ADR in Nigeria?

I should split acceptance into three components. There’s the acceptance by the general populace, the acceptance of professionals who advise litigants in this general populace, and the court’s attitude in terms of facilitating or in disabling arbitration.

In terms of acceptance by the general populace, this has evolved with the congestion of our courtrooms, given the volume of commercial disputes that the courts deal with.  The wheels of justice have been acknowledged to be slower than those seeking justice and this creates the natural desire to find faster ways of resolving disputes. This, therefore, has created a need and evolved the acceptance among practitioners.

On the question of acceptance and capacity, we place a premium on building capacity in people and so we train, certify and admit different professionals to our Institute. We are not restricted to lawyers alone. For instance, if the Institute has disputes that deal with the development of a building project where an advance payment guarantee is made, you would agree with me that there is nothing to interpret legally that requires the services of a lawyer. It is a quantity surveyor who will determine by his expertise and experience how many blocks should get to a particular level and if he thinks what is on-site is worth the money that has been paid for it. We have had disputes such as this determined within two weeks of the commencement of the arbitration.

The third acceptance is the role of the courts. Alternative Dispute Resolution will grow based on whether the courts play a facilitation role, encouraging it, or whether they play an inhibiting role by setting aside arbitral awards. What we have seen in Nigeria is that it is a mixture of both.

There is a qualitative aspect of it in terms of the quantum of the claims. A dispute with a claim of about $2 billion, would be more significant in quantum than 50 small claims of $50,000 each. So when these big users perceive that after they get arbitral awards in Nigeria, it is difficult to enforce them or worse still, that the awards are easily set aside by the court, they tend to prefer the seat of arbitration as the UK, South Africa, New York or Paris. The simple reason is that they are trying to avoid this problem.

What we are doing is creating that enlightenment through training, seminars and engagements with professionals, the bar and the Bench to ensure that there is fairness and justice. More than anything, arbitration and other ADR should be seen as helping to lighten the load and the burden on our courts. If parties agree to settle their disputes by referring it to arbitration, who knows, then so be it, do not interfere with it. And so, to the extent that our courts are taking a more facilitation role, it enhances the acceptance of arbitration.

A part of our mission is to increase the size and number of arbitration done within our shores and not have them exported because people are afraid that the court will not support what they’re doing. We also want to increase professionalism and ethics within arbitration practice, the credibility of arbitral proceedings, and the integrity of awards made locally. There is no reason why we should not do it well here.

When you export arbitration to another country, you also export opportunities for capacity building and jobs and even the little things that can help our economy such as hotel fees, coffee and tea, and who serve that coffee. We become mere spectators – like watching a foreign movie. So we want to do a lot more here but do it the ethical way and properly.

The answer to your question would depend on how you describe popularity. Is it a game of the absolute number of litigants, disputants, or is it a game of the quantum of the two differently?

Take for instance; 12 people have signed up for a programme by Davidson. They are 12 civil servants versus one person who signed up for the programme, Aliko Dangote. If you want to measure the popularity and I’m asking in what ways are you measuring? If you are talking about the absolute figures, the quantum of claims, I just gave you two examples.

Two recent matters of national importance had claims of $10 billion and $1.7 billion, and which come to about $11.7 billion. Just two cases – now do you want to talk about the numerical number of cases that reside within the courts, magistrate courts, customary courts and so on.

In terms of the heavy disputes, railway projects, energy projects, banking, software disputes and so on, a lot of those top-end commercial matters are dealt with by arbitration.

And to answer your question about confidentiality and the media, the parties themselves choose confidentiality. It is the parties themselves who have opted for confidentiality as an attraction to arbitration. And why do I say so?

Sometimes, a matter being public, could for instance affect the share price of a disputant. Even when a party eventually wins, people already see that they have a problem and they are fighting with the key supplier, and it’s open.

So sometimes, the parties for legitimate reasons, not for anything untoward or dodgy, decide they want to treat their disputes in a confidential manner, and until they resolve it, they don’t want people to begin to guess, and we treat it as such.

This is so because sometimes, if somebody makes a claim against you, for say, a billion Naira, some of your creditors, or suppliers who were supplying you things on credit, on learning that there is a billion naira claim against you, and even before it is determined, may decide to play safe and ask you for cash in advance.

And so it is for some of these reasons that those parties insist that they would prefer to fight quietly until they have a winner in the fight. Also, don’t forget that arbitration is party autonomy.

It is what these two people want that is supreme not what a third party wants, which is why some matters are not ‘arbitrable’ by reason of having a public interest in them, such as taxation, and outcome for election petitions.

But as to whether the contract between Mr Iriekpen and I, who should pay who, both of us may decide to keep it private and the law will respect that. So you’re not going to get popularity by publicity. So you may get popularity by being effective, not by it being made public.

What is your view on the national policy on arbitration for Nigeria?

Well, it does look on its surface, that it is good to have a definitive framework and policy on arbitration. However, we must keep in mind, building from my last point, that party autonomy is what drives arbitration. The regular way the law says you should deal with your disputes is to either go to court or take any other lawful steps.

However, if parties then decide that they would rather settle their dispute in Yaba in a closed room, then we cannot decide otherwise for them. So, to the extent if you look at the policy, it has two segments, it seeks to deal with issues of domestic arbitration in relationships between Nigerian entities and of course, another segment in the relationship between Nigerian entities and foreign entities, international arbitration and domestic arbitrator.

Now, whereas it is valued to be prescriptive, to say maybe we should try to do as much as possible locally, but then you cannot legislate. This is why it is a policy and not a law. You cannot legislate for people, and say you must settle your dispute in this way.

There’s already a court system that has given you that, but ADR as the word connotes, alternative, parties are at liberty to create alternatives if they decided they want to go to Accra, Ghana to solve this fight between them, I’m afraid there’s little anyone can do to stop the parties.

Where the policy might come is in terms of the states negotiating that we do not want to go outside Nigeria, so if you’re having a contract with the Nigeria Ports Authority, the policy will be their backing for saying, ‘we don’t want you to take us to India, or the UK’.

And you can see that the policy is stemming from some previous bad experiences that we have had as a country. So where the sovereign can decide that its parastatals should as much as possible patronise local arbitrators, they must find someone who is capable, is competent to settle disputes locally, build capacity, learn from errors and create precedents, and subsequent ones.

To that extent, the policy has a lot of merit and goodness, but to the extent of stipulating that parties other than public entities must do their arbitration in a certain way, that is not the spirit of arbitration.

How can the use of online dispute resolution be institutionalised and standardised, or deployed in key commercial cities such as Lagos, Abuja, Kano etc?

You know the good thing about technology is that it is modular in nature, you can increase, you know, and build upon what you have. In the past, Online Dispute Resolution (ODR) as we call it, looked at being able to resolve any disputes through maybe artificial intelligence-driven platforms, mass service using the online medium.

I don’t want us to confuse it with arbitration proper. Using technology, like virtual platforms, like having a hearing on zoom, or Microsoft Teams is slightly different from what ODR was.

ODR was like, you logged into a site and you put your claims enquiries there and they will get back to you. Everything was simplified. It was for small claims, to dispense the justice quickly and fast.
Like your magistrates don’t go into lengthy procedures, some rarely deal with them, unlike the high courts. So what we’re looking at is creating the ODR to deal with smaller claims.

So what I am talking about primarily is to be able to create platforms, just like the courts have virtual hearing, to take your witnesses and cross-examine them, to have the arbitrators watch the demeanour of the witnesses on this same rectangular screen as we’re having this interview.

It covers being able to handle it without travelling and making sure that we have physical meetings then primarily two meetings or maybe max three happening in arbitration.

The first is a preliminary meeting of arbitrators and parties and their lawyers. And the second is a hearing where you call your witness, you tender your document and the other person cross-exams.

At the maximum, there might be a need to have another day or two after that, those are the two main days that you have to physically meet that you are expected to hear from the arbitrator as they take their written addresses and they go and give the award or judgment.

So we’re saying that in these two sets of meetings, we will leverage technology to not make them physical unless the parties themselves say so, remember, in all ADR, it is what the party wants as long as they don’t want something illegal, whatever they want to hold sway. So, yes, to answer your question, we will be making investments in ODR via industry resolution and virtual platforms to take other ADR.

How is the Covid-19 impacting ADR practice in Nigeria right now?

What the Covid-19 just did was to bring to the fore possibilities that existed before but for which people didn’t take advantage of, because they had the convenience of just hopping into a car and driving to one place or the other.
Long before Covid-19 existed, prisoners in the UK were given bail virtually, they had abolished what we call a black Maria truck, which was seen as a very inhuman way to transport prisoners, and don’t forget, we call them prisoners, but they are not prisoners.

They’re suspects, the constitution allows them the presumption of innocence until the trial is brought to an end and the court completes. So it’s an inhuman way to transport innocent people if I can put it that way.

So what they did was, instead of transporting them, they simply just put a virtual platform, right. And then they took the application, and the magistrate or judge granted the bail, or from his screen or denied the bail or put conditions.
So what Covid-19 did was to bring that to the fore for us locally. And I think that we shouldn’t even be going back on it post Covid-19. We shouldn’t see all of the measures that have come up as just substitutes, for which we will sooner or later go back.

I believe that these are going to be the modified way of living, and for the court systems, and ADR, a number of the arbitration that I have done personally recently, have been all virtually and I concluded about five significant arbitrary matters virtually.

So whether I’m here or outside the country, it doesn’t matter. One of the parties was in the United States (US), one of the arbitrators was in the US a witness was in Dubai, and we still concluded the arbitration. So we intend to leverage this or not go back.

In terms of outrage, I believe the case you’re mentioning is the one where somebody was convicted of murder after a virtual platform, I think it’s people getting used to it that is the matter.

Another question is, would it have arrived at the same conclusion whether it was physical or not? That is a different matter for which we don’t have all the information. But having applications, hearings, cross-examinations virtually has become the way that it has to be.

And you will find that, with this, you’ve taken away the excuse of people who say, I cannot be there at the hearing, I will be in Ghana. The response should be – No problem, log on from Ghana, and we’ll have the hearing.

I think, it has solved the dispensation of justice on one hand, and on the other hand, those who cry that they don’t have the technology, attend virtually book presentations, service of songs, and funerals virtually, but then cry out that is not possible to either transmit electoral results virtually, electronically, have ADR virtually, I beg to disagree firmly in that the average person has some more access than we can credit them with.

And in any case, when we start doing it, it will find its way and improve just like when the GSM came out; we said people can’t afford it. But I think everyone has been proven wrong, as an institute, we intend to leverage the impact of technology very strongly.

And I’d say that Covid-19, though bad it came as a pandemic, also taught us to live slightly differently than we did. I’ve known Mr Iriekpen and his journalistic excellence for more than two decades, today, we’re having an interview.

I don’t know where he is, whether he’s in Abuja or Benin, doesn’t matter, but we’re having this conversation. So we intend to build upon it and invest massively in it in our different branches in Abuja, Enugu, Ibadan, Kano Port-Harcourt, Kaduna, Aba, we intend to invest massively in those projects, and God helping us will be successful.

Nigeria recently ratified the AFCFTA Agreement, what are its implications on trade and commerce as it relates to dispute resolution?

Well, as you know, we’re party to this very, potentially very useful AFCFTA. And it’s going to create larger opportunities when properly utilised, opportunities for trade and commerce. Most arbitration today focuses on commercial arbitration and that is where we dominantly play, so we will look at it.

Our conference this year is ‘Disruption, and the New Normal in Arbitration and ADR; A Way Forward’. We think that the future of implementing policies like this will lie in the ability to resolve disputes quickly; in fact, it is an integral part of the countries who sign on this AFCFTA treaty to be able to provide quick mechanisms for dispute resolution, and that is an essential ingredient.

Our institute is at the forefront of driving this, and we intend to provide support for it. Now, in the conference for the institute coming up, we will be looking at the digital economy and dispute resolution, ethics and integrity in arbitration, and conflict of law under this same AFCFTA. I believe that is going to be an evolving thing.

Our institute is positioned to play a dominant role in supporting that essential ingredient of AFCFTA. We will also be looking at the future of remote hearings in the post-pandemic world, irrespective of the pandemic.

Many things will not go back again, and just so you know, we’re not alone. We shouldn’t allow the world to leave us behind across the world. In a survey done by Fresh Fields law firm, they had actually done a survey and also compared with a survey by the ICC before 2020, where they found out that 71 per cent of users have participated in fully virtual hearings for the first time in their lives, this is an increase from 31 to 36 per cent.

In just the first quarter of the year, and literally before Covid-19 It was near to nothing. So if the world is switching in that way, this is why our Institute is driving growth in that way. We don’t want to be left behind. We don’t want in five years to be saying, ‘oh why is arbitration like this in Nigeria?’

We want to hop onto this train, which we’re already in, in fact, we are on the train and we don’t want to come down. And so we will make the best of it to support AFCFTA and the other entire project.

What is the difference between the United Kingdom (UK) arbitration body and the Nigerian body, there seems to be an unspoken rivalry, kindly clear the air?

There is no confusion, as to which is which. We are the Nigerian Institute of Arbitrators; the other Institute is the Chartered Institute of Arbitrators, UK, Nigerian branch. They are legally birthed in different countries as well, and what you see as the other institute is the Nigerian branch of the UK entity.

While ours is the Nigerian Institute of Chartered Arbitrators, we are duly registered under the laws of Nigeria and have our RC number, our colours and logo are green and white, depicting the colours of the Federal Republic of Nigeria. So it is not possible for anyone to be mixing them up. Except they don’t want to pay attention, ours is an indigenous local Nigerian Institute, we’ve never pretended to be the United Kingdom Institute.

So I hope that addresses the identity issue. We had also been in existence in Nigeria, for 20 years before the other institute started a Nigerian branch as there to be seen.

In terms of rivalry, I’d rather take a better and refined word, ‘competition’, and competition is good. Competition allows you not to be reclined in your seat, and to give good offerings to your membership, the quality of the service offerings, the benefits, the sense of pride about where you belong, are the things that competition brings out.

Sometimes in competing like when Nigeria’s federating regions were competing, the economy grew a lot better. So we do not want to have one Institute in Nigeria. No, we should have more, we should have even three or four, and they should compete, but in a decent manner, with ethics and with facts to substantiate what they are promising the public.

In terms of people’s preference, our membership numerically is perhaps about three times more than the Nigerian branch of the UK Institute. Again, that is verifiable; the management will give you or fill out the exact number of members.

We do have branches of the Nigerian Institute of Chartered Arbitrators across Nigeria; Kano, Kaduna, Anambra, Enugu, Rivers states, etc. We have these as branches. We don’t have branches in any other country; we have branches in states of the federation.

The UK Institute has Nigeria as a branch, so there is no confusion of identity and I hope that confusion isn’t there and what you refer to as rivalry which I see as competition, is good for the market, we don’t want to have a monopoly of service but then in terms of respect for it, I can just tell you that perhaps about six previous chief justices of Nigeria, four previous presidents of the Court of Appeal, and four to five previous judges of the Federal High Court and state chief judges retired, belong to the Nigerian Institute of Chartered Arbitrators.

I do not know where the respect measure is. The other institute has a lot of eminent members that I have a lot of respect for. Some of them are my professional colleagues. And I have tremendous respect for the other institute and their members. And I’d like to believe that the feeling will be mutual at some points.

You mentioned that the institute would be holding its conference soon, kindly share more updates about it?

This conference is to chart a way forward. It does promise a very useful array of speakers, internationally drawn from a wide audience across different countries, the US, the United Kingdom, Australia, South Africa, and some of our leaders in Nigeria, leading lights in the arbitration space.

And we’ve drawn these speakers carefully to meet the needs of our participants, and our stakeholders. In simple terms, it will be a very remarkable and memorable event.

The conference will discuss the digital economy and dispute resolution; we look at Fintechs financial inclusion and the technological support behind them, and the disputes that could emerge; how they should be dealt with.

We want to look at ethics and integrity in arbitration. As you can see, it’s becoming a fore thing that our institute is pushing to the fore. There’s a lot of questions that need to be addressed in terms of a code of behaviour for arbitrators and parties, as well as a counsel in arbitration.

We’ll also be looking at the conflict of laws under the AFCTFA and its effect on trade and commerce, and of course, talk about the opportunities and how arbitrators and professionals can play a role.

We’re going to have opportunities for participants to contribute to the various sub-themes through their comments, questions. And we will be leveraging the power of technology to make sure that we reach out more than we ever did, so the impact is felt among stakeholders and conferees.

What is the institute doing toward promoting dispute resolution through arbitration among Nigerians?

Number one is the awareness programme. This we have put in place to deal with key points where the first respondents to disputes will have relationships with different branches of the Nigerian Bar Association, our relationship with the professional Institute’s, standard arbitration clauses which are literally in agreements that our members draft and prepare.

Further, we have our training programme and capacity building, which is as well targeted at both lawyers and non-lawyers. We also have programmes for in-house counselling of different companies.

And then, of course, to instil professionalism and catch them young, we do have programmes for the young arbitrators, right from school. So we believe that a combination of all of these things I’ve mentioned to you just now would help to put in place measures to attract more people to these alternatives to dispute resolution.

And don’t forget, they still have recourse to the regular courts, but we’re trying to get people to take advantage of the benefits of ADR in their matters.

Speaking of ODR not being so effective in big cases, what would you say about the Palestine-Israel conflict resolution with the use of ODR?

I believe you’re referring to how they used to resolve the Tamil Tigers insurgency and the Palestine-Israeli conflicts?

Yes, remember, technology is not a subsidy of human will. It is only when for instance, we’ve all agreed and we’re desirous of having this interview that the zoom platform becomes useful. But if there is an unwillingness from your side to hold the interview, and I’m also trying to escape the interview, no matter how much THISDAY invests on virtual platforms and the Nigerian Institute fo Chartered Arbitrators invests on a virtual platform, it won’t happen.

I use that to handle the question about how we can use that in Nigeria. Now, there was a willingness by the Tamil Tigers and the Sri Lankan movement to sit, negotiate a truce, similarly with the Israeli and Palestinian sides.
And after that willingness, that’s when the technology enables the parties to meet. So in the past, it has been difficult for us to get parties in the room to talk because they fear that they may be arrested, or be subjected to persecution of any form.

In the portrayed cases, part of the previous fears was that the lead speaker or the spokesperson might get arrested or the key leader of the insurgency. And so what the virtual platform will now provide is where that fear doesn’t exist, sort of, ‘I can meet with you now, and you can’t touch me.

So if that is the basis, as I can summarise from the Sri Lankan and Israeli respective experiences, I believe that it could be utilised locally to deal with our ongoing security problems, but you have to then ask the question, in the Tamil Tiger’s issue, they had their demands.

So a negotiation happens when two sides have demands or one person has some demands. But where the other person never communicates a demand to you, and all he is doing is criminality, maybe kidnapping people and taking ransom, then it’s difficult to discuss because you don’t know what you’re doing, give and take.

Where there are demands are where you say, ‘well, you have six demands, I think the first two we can grant, we will never grant the last two, the medium one, we can meet each other halfway. And there’s mediation and so on. So yes, it is possible to use if we have any group that has a known demand.

And with that demand, you can then sit down and negotiate using an online virtual platform. Because by then all the fears have been removed. I.e. the Tamil will have that virtual meeting from the bush, you won’t see them or they might cross over to a friendly country or a neutral country, and hold those virtual meetings, but they’re worried that if they come to your state capital, you could easily handcuff the leaders of the other team. And so, that’s the benefit it provides.

Speaking of technology, do you think the body is strong enough for this innovation?

Certainly, the answer is yes. The institute has been investing in the platform of technology to service its members. And what we’d like to do is to step that up and have massive investment in technology in software and hardware to be able to offer a better medium for arbitrating disputes, and mediating disputes to our members.

And then to step that up in terms of interaction between the members themselves, and the members and the Institute, as well as all the stakeholders and users of arbitrary services.

And we believe that this is something that has to be done, already that is going on. Our last conference was extremely successful, perhaps one of the most well-attended conferences with over 5,000 members, conferees and that was done and delivered effortlessly by superb management. So to answer your question, we already have the capacity. And we have already put steps in that direction.

So yes, we have the capacity, both in terms of the will, and in terms of the resources to finance it from internally generated funds, for a massive investment in technology, because we see that as the future of arbitration and other dispute resolution processes. One more thing is to also highlight that we’re not doing that in isolation.

We’re doing that with capacity building of human resources within the institute. And of course, within the committee’s, that forms part of the whole framework of services to our stakeholders.