‘Port Harcourt Arbitration Conference will Chart New Frontiers’

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Arbitration is fast becoming entrenched in Nigeria and the practice here has begun to grow leaps and bounds. Today, Nigeria has several Arbitration Bodies. Mrs. Doyin Rhodes-Vivour is the Chairperson of the Chartered Institute of Arbitrators UK (Nigeria Branch). As the Institute holds its annual conference in Port Harcourt this week Mrs Rhodes-Vivour told Onikepo Braithwaite, Jude Igbanoi and Tobi Soniyi why the 2016 conference is so crucial. She also expressed her desire to see the practice of arbitration grow exponentially in Nigeria and for the country to become Africa’s sub-regional arbitration hub in the shortest possible time.

There has been a lot of interest generated regarding the Annual Conference of the Chartered Institute of Arbitrators. Can you tell us more about the Conference?

The Annual Conference of the Institute and Gala Nite is actually the flagship event of the Institute. It is an opportunity for members of the Institute and all those interested in arbitration and ADR to get together and deliberate on key issues and developments in the field. Apart from the incisive papers that will be delivered, the brainstorming on topical issues, the abounding networking opportunities, attendees will also have the opportunity to relax on the final day of the conference when we have the Gala dinner and induct our new members.

What informed the decision to hold the conference in Port-Harcourt?

Our Institute is organised along the lines of our Branch Secretariat sited in Lagos and our two chapters located in Abuja and Port-Harcourt respectively. The decision was taken about two years ago to host our Annual Conference across our Chapters and Branch Secretariat. Hitherto we held our Annual Conferences in Lagos. The 2015 Conference was held in Abuja and this year we will be in Port-Harcourt.

Tell us more about the Institute and its membership.

In a nutshell I can tell you that the Institute is an international centre of excellence for the practice and profession of alternative dispute resolution (ADR). In this context ADR refers to all means of settling disputes outside the court system including; arbitration, mediation, negotiation, expert determination and adjudication. It is an internationally recognised home for all alternative dispute resolvers. The Institute founded in 1915 continues to play a pivotal role in the education and training of alternative dispute resolvers. Indeed, I can confidently say that it has achieved its major mission of raising the status of arbitration to the dignity of a distinct and recognised position as one of the learned professions.

The Institute’s membership is multi-disciplinary and composed of various disciplines including law, engineering, architecture, banking, finance and estate planning and surveying. There are still some professions that are under-represented particularly in Nigeria and it’s our vision to bring all such professions into our fold. Disputes are inevitable in every human interaction and alternative dispute resolution has the advantage of enabling dispute resolution by those with specialised knowledge in the field. Historically the Institute’s concentration was on training and qualifying ADR practitioners, Arbitrators, Mediators and Adjudicators. However, the Institute has moved towards educating all segments of society desirous of understanding the techniques of dispute avoidance and dispute management.

Its growing membership is composed of 14,000 members across 133 countries and supported by an international network of 37 branches across all six continents of the world. Nigeria was granted Branch status in 1999 and is presently composed of 1137 members.

What are some of the benefits that the Institute offers its members?

The Institute’s training qualifications are second to none. Over the past hundred years firmly focused on its mission, its qualifications have evolved into gold standard qualifications. Qualifications issued by the Institute entitle successful participants in the various training programs to the use of internationally recognised statements of knowledge and expertise and the use of respected post nominal letters. Members have access through various means to up- to-date professional thinking in ADR, free subscription to the CIArb’s leading journal and its quarterly newsletter, the Resolver, as well as access to its international library and branch libraries. The qualifications being statements of expertise are also of immense benefits in the development of one’s career.

We appreciate the role our young members play and the need to ensure a continuous pool of quality arbitrators. The young generation needs to be encouraged and mentored. We have a mentoring program targeted at our young members.

In some instances parties are unaware of how to arbitrate or who to appoint as arbitrators. The Chartered Institute of Arbitrators Nigeria Branch has model arbitration clauses that can be tailored to specific contracts. The Institute also offers dispute appointment services thereby appointing arbitrators and mediators for disputants from its pool of highly trained and suitably qualified Arbitrators and ADR practitioners.

We understand that arbitral organisations offer dispute resolution at low costs, yet the general perception is that arbitration is very expensive. While large corporations may be able to absorb the cost and thereby benefit from arbitration, how can small businesses benefit from arbitration and alternative dispute resolution?

Firstly, mediation can be said to be even more cost effective than arbitration. Mediation is a non-judicial process in which an independent and impartial third party assists the parties to resolve their disputes. Mediation can effectively resolve a dispute within a relatively short time in situations where parties take part in the process in good faith. The multi-tiered dispute resolution clause which stipulates negotiations and mediation as prior steps to arbitration can help to save the costs and expenses of arbitration. Furthermore, the Institute’s business arbitration scheme has been developed by the Chartered Institute to provide simple, cost effective and timely resolution of disputes of low to medium monetary value before a sole arbitrator. The scheme has specified timelines, a relatively short period within which the whole process is completed and the arbitrator is expected to adopt the simplest procedure tailored to match the dispute in process. This scheme is particularly attractive for small businesses and we encourage all small businesses to contact our schemes committee with a view to keying into the scheme.

For the international business community, foreign investors and large corporations, though arbitration may be far more expensive than the relatively low cost judicial system, a foreign investor weighs the benefits of a more expensive process in favour of the advantages of having the autonomy of its own privately chosen judge, the flexibility of the process, the applicability of international instruments and guidelines transcending national barriers and the ease of enforcement (without the need for registration) through the application of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention 1958).

There has been some tension in Nigeria between the different arms of government, What role, if any, do you think ADR can play in situations such as this?

We have three arms of government, the Executive, the Legislature and the Judiciary. A situation whereby there is tension between the three arms is not good for our country. A situation where battles are being fought on the pages of newspapers and different conclusions are being reached by the citizenry (tipping on one side or the other), some of these persons who are neither members of the executive, legislature nor the judiciary, do not even understand the nature of governance, the working of government nor the strength derived from having strong independent and transparent institutions to the growth, stability and economic prosperity of a nation. Alternative Dispute resolution encourages face to face discussions. Face to face discussions create the opportunity for constructive discourse. The independence of the three arms of government or the separation of powers does not preclude direct discussions and dialogue between the three arms as a means to achieve identified and laid down objectives. My take is that ADR can be an effective tool in this situation. Disputes and differences are bound to arise but capacity building on the techniques of dispute avoidance and dispute management can be effective. At the international level alternative resolution including mediation and Good offices have been used to resolve various disputes and differences. There are many respected Nigerians with a genuine belief in project Nigeria who can use their Good Offices to douse tension between the different arms of government and encourage the achievement of targeted and identified objectives.

Recently the Chartered Institute of Arbitrators Headquartered in the United Kingdom launched the All-Party Parliamentary Group on Alternative Dispute Resolution in the UK. The group acts as a leading voice for ADR in the UK Parliament, to encourage the wider use of ADR and alternatives to court in the public interest. Our legislature can also borrow from this.

It would appear that there is a proliferation of arbitral organisations. What is the inter- relationship between the Chartered Institute and other arbitral institutions?

The Chartered Institute collaborates with other institutions in the furtherance of its objectives. The Institute is not in competition with any other body. Our focus is on education, training and ethics. Strong arbitral institutions have a role to play in the development of alternative dispute resolution, particularly within our continent Africa, where there is still a lot to be done. Despite the fact that alternative dispute resolution is the traditional means of resolving disputes in Africa, the Western world is credited with having raised alternative dispute resolution as a critical tool for resolving international business/investment disputes. They quickly realised the confidence investors derive from the availability of neutral venues for resolving disputes outside the respective venues of the contractual parties, the preference for resolving disputes outside the courts of their contracting partners or host states and quickly put up the structures which enabled the development of successful seats of arbitration such as London, New York, Geneva, Paris, Hong Kong and more recently Singapore. African governments are still relatively yet to appreciate the potential economic benefits of gaining international acceptance as a successful place of arbitration. Arbitral organisations do need the support of government to grow.

What will you say the benefits of ADR are?

Firstly, the benefits of the availability of effective alternative means of resolving disputes outside the court system can be examined from different perspectives. Looking at it from the point of view of economic development, an investor is more attracted to doing business in a country that has a globally accepted system for the resolution of disputes outside the court system, one that has a strong, independent and transparent judiciary. Then looking at it from the perspective of developing into an attractive place for alternative dispute resolution activities, there are invisible earnings which also accrue to the country’s coffers. All countries that are serious with their economic reform process and those which quickly emerged from economic crisis or stagnancy came to this realisation and took active steps for example China and Singapore. Today China is regarded as one of the world’s fastest growing economies. A World Bank report once referred to China’s story as fascinating. China focused on four key areas; foreign trade, foreign investment, intellectual property protection and dispute resolution. The World Bank doing business report 2016 ranked Singapore as the easiest country in which to do business, in the world. Singapore’s extensive arbitration and mediation centres and its commercial court has contributed immensely to the country’s development as an international hub for dispute resolution and aided its aggressive and successful pursuit of foreign investment.

The World Bank doing business report 2016 stated that it was more difficult to do business in Nigeria in 2016 and that our country remains one of the poorest business destinations in the world. Discussions on removing this perception without paying serious attention to ensuring the viability of an appropriate legal framework and infrastructure for arbitration and alternative dispute resolution will not achieve the needed objective.

What steps do you suggest should be taken to improve Nigeria’s profile in the field of arbitration and alternative dispute resolution?

Firstly, there should be a thorough forensic audit of all factors and laws militating against the practice of arbitration and alternative dispute resolution in Nigeria, as well as the recognition and enforcements of awards. I will mention a few;

We have some obsolete arbitration laws on our statute books including the Ordinance based arbitration laws based on the 1914 Arbitration Ordinance and which in turn was based on the 1889 English Arbitration Act. Sadly some of our states retain these laws on their statute books. The Arbitration and Conciliation Act is also obsolete. The Act was passed in 1988 and is a modification of the 1985 UNCITRAL (United Nations Commission on International Trade Law) Model Law and 1976 UNCITRAL Arbitration Rules. Both the UNCITRAL Model Law 1985 and the 1976 Arbitration Rules have been amended pursuant to extensive deliberations at the United Nations Commission on International Trade Law. In 2006 the United Nations recommended to all states by resolution 61/33 of 18th of December 2006 to give due consideration to the amended Model Law in view of the desirability of uniformity of the law of arbitral procedures and the special needs of international commercial arbitration practice. In 2010 the UNCITRAL Arbitration Rules replaced the 1976 Arbitration Rules. The only state in Nigeria which appears to be aware of the importance of up-to-date arbitration laws appears to be Lagos State.

Furthermore, serious attention needs to be paid to the need to ensure that our court system is more expeditious, we have a situation where arbitration matters are being locked up in the court system for many years, due to the congestion in our court system. In a case before the English courts which involved the enforcement of an arbitral award made in Nigeria, a celebrated Nigerian jurist gave evidence before the English court that the wheels of justice grinds very slowly in Nigeria. That statement can only discourage a serious foreign investor. The Nigerian situation is not unusual, what is unusual is our response to it. Let us learn from other jurisdictions. The Mauritian arbitration law is based on the UNCITRAL Model Law adopted in 1985 but as amended in 2006. The Supreme Court International Arbitration Claims Rules 2013 were adopted in June 2013 and provides for a detailed and clear set of procedures drafted with the aim of being practical and readily usable. In Mauritius there is a special panel of six Judges to hear arbitration proceedings and special rules for arbitration applications, a detailed and clear set of procedures of bespoke rules. The Mauritius Supreme Court has come out very clearly in support of arbitration, in its interpretation of its good and modern arbitration law. The Singaporean government was instrumental in promoting Singapore as a favourable place for arbitration. The Singaporean Government in a bid to improve its business environment placed emphasis on making Singapore an international arbitration hub. Recognising the need for good infrastructure and facilities, the government invested in a world-class dispute resolution facility for arbitration. Today we see Singapore being listed with New York, London, Paris and Geneva. Singapore’s growth was not accidental nor by chance but was through its gradually gaining the confidence of foreign investors through conscious, timely and planned interventions. Some 28 years ago, the Singapore Courts in interpreting the Legal Profession Act had in the case of Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd & Anor [1988] SLR 1037, the Singaporean High Court granted an injunction ordering lawyers from Debevoise & Plimpton from acting or appearing as counsel for the respondents in a Singapore-seated arbitration. The exparte injunction was obtained from the High court restraining foreign lawyers from appearing in the arbitration on the basis that their appearance would contravene the Legal Profession Act. The Law Society of Singapore supported the application. The Court held that any common law right, to retain in arbitration proceedings whomsoever a party desires, had in Singapore been “taken away by the Legal Profession Act.” As to be expected, the decision was not well received by the international arbitration community. The consensus was that Singapore was not an attractive seat for international arbitration.

Decisive and expeditious action was taken in Singapore. The key stakeholders rose to the challenge and a Legal Services Working Group was set up to review and make recommendations on the promotion of Singapore as a Regional Alternative Dispute Resolution Centre among other terms of reference. Parliament stepped in. The Legal Profession Act in 1992 was amended to permit foreign lawyers to appear in arbitrations where the applicable law was not Singapore law. In 2004, the Act was further amended to expressly permit foreign lawyers to represent parties in Singapore arbitration.

During our London Centenary Conference held on the 2 July 2015, our Patron, Honourable Chief Justice Sundaresh Menon stated thus:

‘The existence in Singapore of laws that augment the practice and conduct of arbitration, an independent judiciary experienced in and respectful of fundamental precepts of international arbitration, freedom of choice in representation, purpose-built first-in-class dispute resolution facilities, and a staunch adherence to international treaties designed to sustain an international system of arbitration, can be observed in the arbitration eco-systems of London, Geneva, Paris, Hong Kong, and elsewhere… Building a successful arbitral seat is therefore a conscious, deliberate, and ongoing project.’

I could not agree more. The three arms of government and all stakeholders in Nigeria need to key into this vision.

What role do other stakeholders have to play in this project of enhancing Nigeria in the field of arbitration and alternative dispute resolution?

Heads of courts in Nigeria should seriously look into the court rules with a view to having special rules for arbitration applications. In this regard some steps have been taken in the Lagos State Arbitration Law which provides for special rules for arbitration applications.

Arbitration applications before the courts currently go through the three tier appellate system, High Court to Court of Appeal to Supreme Court. Time has come for us to seriously think of constitutional amendments that will limit the right of appeal in arbitration matters, time has come for us to consider having specialised courts to hear arbitration applications. Some African countries; Kenya, Uganda and Rwanda have established commercial divisions in their court systems for referral of arbitration issues. Expertise is being developed within the court system on arbitration matters.

We must commend the establishment of Multi-Door Courthouses by various state judiciaries and the emphasis on case management largely premised on the work of Lord Woolf in England and again pioneered in Lagos state.

The Chartered Institute is presently playing a pivotal role in advocating for the reform of Nigeria’s arbitration law and we hope that when the time comes, our legislature will take urgent necessary action. I must say that the legislature have had a listening ear to our views advocating that certain bills which will not only militate against the practice of arbitration in Nigeria, but also bring Nigeria to disrepute within the global arbitration community should not be passed into law.

You were recently elected as the Chairperson of the Chartered Institute of Arbitrators Nigeria Branch. Can you tell us about your role in this regard and your route to this position?

Yes indeed my role can only be understood within the context of the organisation I serve, the Nigerian Branch of an international dispute resolution organisation, founded in United Kingdom in 1915. The mandate of the Executive Committee which I chair, is to work towards actualising the vision of our reputable organisation, so aptly described as the internationally recognised home for dispute resolvers. The Institute’s vision and pillars of strategy include promoting access to non-court dispute resolution; education, training and professional qualification; the development of Rules, Ethics and Guidance to members, academic and professional resources and global community. The golden thread of the Institute’s objectives is the delivery of education, training and qualification, the development of the learned society and the facilitation of ADR. We are committed to applying the strategy of the Institute in the achievement of our objective.

My route to being elected chairperson is of service. I am one of the founding members of the Nigerian Branch. In accordance with its regulations, a number of meetings had to be held before the Headquarters could confer us with Branch Status. We held these meetings and were granted Branch Status in 1999. The first chairperson was the late Hon. Justice Olakunle Orojo, Chief Mrs. Tinuade Oyekunle followed. Other Chairpersons have been Chief Bayo Ojo SAN, Mrs. Funke Adekoya SAN, Mr. Babajide Ogundipe and Mr. Dele Belgore SAN. I have served the Institute in various capacities, including heading committees prior to being elected Chairperson in 2016. I was the Hon. Treasurer [2003-2009], 3rd Vice-Chairman [2009-2011], 2nd Vice Chairman [2011-2013] and 1st Vice Chairman [2013- April 2016].

You have over 30 years’ experience as a lawyer. Tell us about your early career before breaking into the ADR field.

Yes, I was called to the Bar in 1981 after my course of study at the University of Lagos. I come from a legal family and learnt a lot from my father Chief Lekan Akande before he passed on. After my stint during my NYSC in a multi-national oil company, Nigerian Agip Oil Company, I joined the Law firm of Gani Fawehinmi & Co. where I was briefly before I joined the Lagos State Ministry of Justice as a State counsel. I consider the Ministry as a very good training ground. Working with Gani Fawehinmi was a very effective way of being catapulted into the rigours of the legal profession. He worked tirelessly and there was a lot to learn from him.

I have been in the law for over three decades. I have not engaged in any other profession or business. In the early stages of my career, I came across many contracts which provided for arbitration as the mode of dispute resolution and so I began to read up on arbitration and alternative dispute resolution (ADR).

Coincidentally the United Nations Centre on Transnational Corporations (UNCTC) was also doing a lot of capacity building in African Countries through trainings and conferences around the same time so I was exposed to courses where arbitration was a key component of the curriculum.

After a considerable amount of training and work, I applied and was admitted to the Chartered Institute as an Associate member. During the same period (1995 or thereabouts). In 1998, I received my first appointment as an arbitrator in an arbitration involving a multi- national oil corporation.

You were the President of the Maritime Arbitrators Association of Nigeria, what was the motivating factor for the establishment of the association and has it achieved its objectives?

The Maritime Arbitrators Association of Nigeria (MAAN) was founded in 2005 out of the need to develop expertise in Nigeria, in the field of maritime arbitration and to position Nigeria as an appropriate venue for maritime arbitration.

The Association was co-founded by other professionals, who had developed expertise in commercial and maritime arbitration. We were motivated by various factors including the high level of ‘Nigerian’ disputes which were taken out of Nigerian shores for settlement and at huge financial costs – invariably disputes that could otherwise have been settled in Nigeria.

There were also domestic maritime disputes which could otherwise have been settled by arbitration and ADR, which happened to be locked up in the Nigerian Court system. We were driven by our passion to develop capacity in the field of alternative means of resolving maritime disputes in Nigeria.

Being the Chairperson of the Chartered Institute of Arbitrators Nigeria Branch and a foremost Arbitrator, what factors do you consider as militating against the growth of Arbitration in Nigeria and Africa generally?

Apart from the legal framework which I have mentioned earlier, another major factor militating against the growth of arbitration in Nigeria is the litigious mindset of disputants. Arbitration is often times viewed as a first step to litigation. Some disputants rush to court to challenge arbitration agreements or the process, even where the arbitration agreement is unambiguous and the resultant Award complies with all known criteria. Statutorily awards are not appealable, but can only be set aside on certain limited grounds. It is necessary that the legal system retains the mechanism for filtering awards that don’t comply with accepted standards and laid down criteria, but there should be more concerted efforts to ensure the expeditious hearing of arbitration matters when they come before the courts.

Presently, it can take several years before the challenge procedures are exhausted. This effectively traps arbitration matters in the court systems, the very courts the parties sought to avoid by stipulating an arbitration clause, thus defeating the parties wish for timely dispute resolution.

African lawyers and arbitrators must ensure that they are trained to international standards and attain international exposure on best practices. African businesses, international arbitral organisations must appreciate that there are various well trained African arbitrators, in order to address the questions of African under-representation in arbitration. African governments must address issues of safety and security concerns, in order to make their countries attractive for international visitors. Africa needs to have more flight connectivity and ensure ease in visa procedures. Unfair prejudices against Africans should stop whilst we ourselves should project Africa in a positive light. An arbitrator is like an ambassador for his or her country. We have highly-skilled and experienced arbitrators in Nigeria who can hold their own in any part of the world and arbitration institutions that can administer arbitrations successfully.

Tell us about the highlights of your 2016 conference?

The theme of our 2016 conference is Emerging New Frontiers in ADR. There are new variants of disputes, downturn in the oil and gas industry with potential for breach of contractual agreements, effects of globalisation of markets, developments consequent upon internet use, online dispute resolution. Practices that were hitherto unknown, such as third party funding which is generating quite a lot of debate worldwide. The essence of our conference is for us to debate and discuss these new frontiers, to assess whether or not we are meeting user expectations. Any organisation that wishes to remain relevant must have the capability to keep up with developments, assess its effectiveness and where necessary, come up with solutions to meet its user’s expectations in line with global best practices. We have sessions on emergency arbitrator proceedings; third party funding; effects of modern technology/innovation and Nollywood disputes, the role of mediators in modern forms of disputes: terrorism and insurgency. As always, our young members will be happy to know that there is a special interactive session for them.

Our organising committee was able to assemble the very best in the respective fields. Men and women who have distinguished themselves in their various fields and who will no doubt bring in diverse perspectives from their various industry and experience.

It promises to be a good conference.

You have recently authored a book published by Lexis Nexis; ‘Commercial Arbitration Law and Practice in Nigeria through the Cases’. What motivated you to write the book and what are its highlights?

The book is my contribution to legal jurisprudence in the field of commercial arbitration. It is my hope that it will encourage law reform where necessary, and the repeal of all obsolete arbitration laws in Nigeria. The book is a useful reference guide to all desiring knowledge in the field and an aid to research. I also hope it will enlighten people outside Nigeria that our arbitration landscape is not as frightful as negative perceptions about Africa may have engendered.

Recently, there has been an outcry against the rape and sexual abuse of females in the IDP Camps in Northern Nigeria. What steps do you think that the Government can take to stop it?

The way we treat our internally displaced persons is only reflective of the malaise in our society. Problems in the camp, from what I have been reading, is not only restricted to rape and sexual abuse. Concerns have been raised about the standards of nutrition, the availability of psychosocial support, the availability of educational programs. I don’t think we should leave the task to government alone. There should be closer involvement of credible non- governmental organisations and foundations in the running of the camps. Abroad various non-governmental organisations/foundations would step into situations such as this. Our churches and other religious organisations ought to also step in. Viable non-governmental organisations who are able to vet their employees, lay down standards, put in place protocols and ensure that people working in the camps are held accountable for their actions or non- actions should step in to work with government and assist in the task to ensure that our internally displaced persons who have already gone through so much trauma, are not subject to further de-humanisation. This should be a collaborative effort between government and these other institutions. There should be a proper monitoring team set up, periodic and constant inspections and laid down effective and appropriate sanctions against lapses.

The general conception is that women have a hard time staying on in their career due to various demands on their time, how have you been able to hold your own thus far?

I attribute where I am today first and foremost to the mercies of my Lord, my God. I have strived to remain focused despite any odds, I am dedicated to what I do and I work very hard. God has blessed me with a supportive and understanding husband. In the work place I have an excellent team.

What role do you think ADR and the Chartered Institute of Arbitrators Nigeria Branch can do to assist Government in securing the release of the remaining Chibok girls from their Boko Haram Captors? Why was your Institute not a part of the negotiations for the release of the first set of girls?

Our Institute has well trained Negotiators and Mediators amongst our membership whose skills can be deployed in all manner of situations. A trained and good mediator is skilled in the art of deploying various techniques and tools including reality testing, assisting parties to overcome emotional deadlock, working with the parties on risk assessment and re- assessment. Our trained mediators are skilled in establishing rapport with the parties and have a track record of gaining the trust of the parties. If called upon, we will be happy to make available our list of negotiators and mediators who are versed in conflict negotiation and mediation. Our Institute has an excellent mediation training program.