National Alternative Dispute Resolution Regulatory Commission Bill 2011
The above titled Bill “The National Alternative Dispute Resolution Regulatory commission Bill 2011” was advertised in various newspapers for Public Hearing before the Senate on the 2nd day of March 2015.This Bill appears to have been passed by the House of Representatives despite objections by various stakeholders that the Bill is not in the interest of Nigeria.
What are the provisions of the Bill? The Bill establishes a Commission, “The National Alternative Dispute Regulatory Commission” composed of representatives of various Federal Ministries (Justice, Finance, Labour, and Commerce) as well as other bodies including those involved in Alternative Dispute Resolution.
A Chairman and Members of the Commission are to be appointed by the President on the recommendation of the Attorney General of the Federation. The Commission is vested with the responsibility to regulate through the process of accreditation all Alternative Dispute Resolution Bodies and Institutions. The Bill further provides that the Commission is to establish and maintain a fund to be applied towards the discharge of its functions and makes provision for funds to be provided to the Commission by the Government of the Federation. The Commission is empowered to borrow by way of loan or overdraft from any source within the country, monies required by it for meeting its obligations and discharging its functions. The Commission, not later than 30th September in each year is to submit to the National Assembly an estimate of its income and expenditure for the succeeding year.
Apart from this Bill being another potential source of wastage of the much needed resources urgently required in Nigeria in the area of education, health, security and infrastructure, its intent and provisions runs contrary to the tenets of arbitration. Arbitration is a private mechanism for resolving disputes premised on party autonomy and is a viable instrument for economic reform .The mechanism has been effectively utilised in various jurisdictions to ensure a system of resolving disputes outside the court system and devoid of government controls i.e. a self-regulatory system which gives foreign investors the confidence to enter in to business with the assurance that there are alternatives for resolving disputes without being subject to the host country’s judicial system or Government interference save for the limited support of the courts. Thus any country which is serious about its economic reform process strives to bring the legal framework relating to arbitration in line with international standards and best practices. The economic success of countries like Singapore within a relatively short time cannot be devoid of the pro-active steps it took to develop into an arbitration friendly country by reviewing its laws and enacting legislation supporting its quest.
Since 1988, when Nigeria adopted the 1985 United Nation’s Commission on International Trade Law (UNCITRAL) Model Law on Arbitration by passing the Arbitration Act (which also domesticated Nigeria’s treaty obligations under the 1958 New York Convention on the Recognition and Enforcement of foreign Arbitral Awards), the country has made appreciable progress in emerging as an arbitration friendly destination. Nigeria plays host to the Lagos Regional Centre for International Commercial Arbitration pursuant to the 1980 exchange of letters of agreement and subsequently the Headquarters Agreement concluded in 1999 between the Asian African Legal Consultative Organisation (AALCO, formerly known as Asian Legal Consultative Committee) and the Government of Nigeria. Certain immunities and privileges are conferred under the Headquarters Agreement for the independent functioning of the Centre. The legal framework for the operations of the centre was concluded in 1999 by the passing of the Regional Centre for International Commercial Arbitration Regional Act No 39 of 1999.
Not too long ago, the Lagos State Arbitration Law 2009, which incorporates the recent 2006 revisions to the Uncitral Model Law further increased the perception of the country as one with up to date arbitration Laws. Nigeria boasts of establishing the first court connected alternative dispute resolution centre in Africa- the Lagos Multi-Door Court House established in 2002.The High Court of the Federal capital territory and several other states have followed suit.
The norm is that arbitration is selfregulatory, regulated by the various reputable organisations with competence in the field. Through the efforts of various arbitral institutions and the educational programmes put in place, Nigeria has a good crop of highly trained and experienced arbitration practitioners who are at par with their counterparts all over the world. Thus, the era of African disputes being settled by International Panels either without any Africa arbitrator or an inexperienced one is no longer generally the case. In line with international best practices, these arbitral institutions have in place their rules of ethical conduct which all its arbitrators are obliged to comply with. Failing which, appropriate disciplinary measures are meted out.
Our courts have also largely played a positive supportive role and our legal jurisprudence indicates a clear understanding of the arbitration process by our courts. Our courts recently upheld the non-interference provision of the Arbitration Act which restricts the courts from interfering in arbitration proceedings except as provided under the Act.
The delays in the court system due to the human litigious nature and the resulting heavily burdened dockets of our esteemed judges negatively impacts on the need for expeditious resolution of arbitration matters before the courts. Hopefully, needed reform in this area aimed at curbing the delays when arbitration matters go to our courts will be looked in to. Possibly, setting up specialised courts or dedicated judges to decide arbitration applications?
The Arbitration Regulatory Commission Bill presently before the Senate, having been passed by the House of Representatives despite the objections of stakeholders can only bring Nigeria to ridicule before the International Community and retard the appreciable progress made thus far.
This is a clarion call to our upper legislative house to play its pivotal role in ensuring that the country’s resources are expended on the much needed areas of governmental responsibility, health, security, education, infrastructure and not on an inimical and ill-advised Commission which can only turn us to an international laughing stock, despite the level of intellectual resources available within our dear country Nigeria.
Doyin Rhodes-Vivour is the 1st Vice Chairperson of the Chartered Institute of Arbitrators (UK) Nigeria Branch,
Member of the International Law Association (ILA), Committee on International Commercial Arbitration and Chairperson of the ILA Nigerian Branch Arbitration Committee.