Handbook of Arbitration and ADR Practice in Nigeria

“THE STYLE OF WRITING IS SIMPLE, AND EASY TO READ. IT IS WRITTEN IN A FLUENT LANGUAGE, EXUDES SCHOLARLY PRESCIENCE COUPLED WITH ANALYTICAL VIGOUR, AND IS USER-FRIENDLY. IT IS A VALUABLE BOOK FOR THE STUDENT, ACADEMICS, JUDICIAL OFFICER, PRACTITIONER, AND RESEARCHER, WHO DESIRES TO KEEP UP TO DATE WITH DEVELOPMENTS IN ARBITRATION AND ADR IN NIGERIA”

Introduction

Iwould like to start my review of this book, by examining it’s title – ‘Handbook of Arbitration and ADR Practice in Nigeria’. This is because there is a huge debate among academics, practitioners and users, as to whether Arbitration is part of ADR. In other words, what is or is not ADR? While conciliation and mediation are consensual, arbitration is both consensual and adjudicatory. Its ‘sui generis’, as it is both adjudicatory and consensual. The Authors of this book, without expressly delving into the jurisprudential and conceptual polemics as to whether arbitration is part of ADR, have impliedly taken a position that arbitration is not part of ADR and hence, the title of the book – Handbook of Arbitration and ADR Practice in Nigeria. Coming from two very distinguished Legal Practitioners and Arbitrators, this is reassuring, and the matter, settled.

The book starts with a Foreword which was written by Hon. Mr Justice Walter SN Onnoghen, GCON, Chief Justice of Nigeria. After tracing the origin of arbitration and other forms of ADR processes in Nigeria from pre-colonial times to the present, His Lordship extolled the qualities of the Authors and their contributions to arbitration, and recommended the Handbook for its enriching value.

In the Preface to the book, the Authors gave an insight, as to what inspired the writing of the Handbook. According to them:

The idea to write this book emanated from the late Chief Sunday Oladeinde Oyekunle. A couple of years ago, he told his wife, Tinuade that “you and Bayo, who are the first and second Chartered Arbitrators in Nigeria, have had varied experience in arbitration cumulatively over eighty years. Why don’t you both try to put something down from your experience over the years, for the coming generation to learn from”.

In order to achieve this objective, the Authors divided the book into twenty-four chapters. Chapters 1-17 are devoted to arbitration, while 18-24 deal with mediation and other forms of ADR.

Review of Chapters Chapter One examines the historical background of arbitration practice and the intervention by the Asian African Legal Consultative Organisation (AALCO) and the UN General Assembly. The UN through the United Nations Commission on International Trade Law (UNCITRAL) promoted the Model Law, which has influenced domestic and international commercial arbitration. These instruments influenced the Arbitration and Conciliation Act (ACA), 1988. The proposals made by the Orojo Committee set up by Chief Ojo, SAN to reform the law since 2006, have been unsuccessful, except in the case of Lagos State that passed the Arbitration Law (AL) in 2009. It must be stressed that, other States in Nigeria are still using the UK Arbitration Act of 1899, which later became the Arbitration Act of 1958, and Arbitration Laws of the various Regions.

Chapter Two deals with the means of settling commercial disputes. These include litigation, arbitration, mediation, conciliation, negotiation, mini-trial, expert determination (including adjudication and dispute review boards) and court-annexed arbitration and ADR. In discussing arbitration, the advantages of arbitration were carefully examined.

Characteristically, Chapter Three provides an in-depth analysis of the provisions of the ACA. It traces its origin, the legislative competence of the Federal Military Government to promulgate the Decree in 1988, and the status of the enactment since May 29, 1999, when the 1999 Constitution (as amended), came into being. I am glad that the Doyen of Arbitration and ADR practice in Nigeria, share the view that arbitration is within the legislative competence of the National Assembly, particularly matters dealing with treaties and other treaty obligations.

In Chapter 4, the Authors exhibit their wealth of experience on the fundamental principles/doctrines on which commercial arbitration is anchored – the principle of party autonomy, the principle of arbitrability, the principle of separability and competence-competence. I prefer to refer to this chapter as Arbitration 101. One unique feature of this chapter, is that it provides techniques for drafting enforceable arbitration clauses to avoid pathological clauses.

If there is a valid arbitration agreement and the parties have the legal capacity to contract, is the dispute arbitrable?

In Chapter 5, the Authors focus on arbitral tribunal – sources of appointment of arbitrators, nationality of arbitrators, composition of arbitral tribunal, grounds for challenge and challenge procedures, qualification, principle of disclosure, independence and impartiality of an arbitrator, the IBA Guidelines on Conflicts of Interest in International Arbitration (the red, orange and green lists), immunity of arbitrators, powers and duties of arbitrators. The character of the Authors, their wealth of experience and exemplary qualities, are amply manifested in their exposition in this Chapter.

Chapter 6 is concerned with the commencement of arbitral proceedings. It discusses the various ways arbitral proceedings are commenced in ad hoc and institutional arbitration, as well as the contents of the notice of arbitration (request for arbitration). The Authors draw attention to statutory and judicial pronouncements on statutes of limitation, and submit in Lagos State, the decision reached in City Engineering Limited v FHA is no longer good authority, because of the provisions of Section 35(2) of the AL, 2009. However, the matter is unsettled in other States of the Federation.

Chapter 7 deals with the stay of court proceedings, in favour of arbitration. We are faced with a situation in which, in one enactment, there are Sections 4 and 5 of the ACA dealing with the same issue. According to the Authors, ‘this has raised confused commentaries’ as to whether Section 4 refers to international arbitration and Section 5 to domestic arbitration.

Evidence in arbitration is essentially the same as evidence in litigation, except that the Evidence Act does not apply to arbitral proceedings. It is the arbitral tribunal that determines the admissibility, relevance, materiality and weight of any evidence placed before it. This was thoroughly examined, in Chapter 8.

Chapter 9 examines the conduct of arbitral proceedings. It starts with the conduct of a Preliminary Meeting, pre-hearing review, pleadings – traditional and statement of case, joinder of parties, consolidation, the conduct of actual proceedings, post-hearing briefs and termination of arbitral proceedings.

The Authors in Chapter 10 note that, there are no provisions on costs in Part 1 dealing with domestic arbitration, but Articles 38-40 of the Arbitration Rules. However, fees are discussed in Part III of the ACA in terms similar to the Arbitration Rules. Similarly, the evolving phenomenon of Third Party Funding (TPF), was critically examined. The Authors highlighted issues concerning confidentiality, legal privilege, disclosure, conflicts of interests, cost and the attorney-client relation; factors to be taken into account before resorting to TPF; the benefits of TPF, and acknowledged that TPF plays an essential role in international arbitration today.

Can an arbitrator award interests in jurisdictions like Nigeria, where there is no such express provision under the ACA? The Authors turned their searchlight on this in Chapter 11.

In Chapters 12, 13, 14 and 15 the Authors examine the arbitral award, publication of awards, recognition and enforcement of awards and foreign awards, respectively. They explore the remedies and reliefs available in arbitration.

What is the relationship between courts and arbitral proceedings? Chapter 16 focuses on the various ways that the courts support arbitration – revocation of arbitration agreement, stay of proceedings generally, stay of proceedings pending arbitration in admiralty matters, appointment of arbitrators, attendance of witnesses, production of documents, setting aside an award, remission of award, enforcement and recognition of awards, and refusal of an award. Section 34 of the ACA underscores all these provisions.

The issue of multi-party arbitration, was sufficiently addressed in Chapter 17.

Chapters 18 to 24 deal with Mediation. The Authors acknowledge that mediation is at the heart of ADR, but arbitration is the most prominent and a special spectrum of ADR.

Chapter 18 is a general overview of mediation, while in Chapter 19, the Authors compare mediation with other dispute resolution mechanisms including litigation, conciliation, negotiation and arbitration. Chapter 20 examines the development of mediation, in Nigeria. In its development, ADR has its core area in mediation, and has been influenced by the court

rules and multi-door courthouses, including Citizens Mediation Centres.

Chapter 21 deals with the general principles of mediation. In this Chapter, the Authors review the subject matters that can be referred to mediation, including inter-corporate disputes, family disputes, commercial disputes, medical malpractice cases, disputes between school authorities and students/ parents of school children, environmental disputes, employment disputes, neighbourhood disputes, public-policy disputes, international disputes.

For those interested in the actual practice of mediation, Chapter 22 is a must read, as it deals with how to prepare for a mediation, conduct a preliminary conference and the phases in the mediation process leading to a settlement agreement.

While Chapter 23 deals with types of mediation, Chapter 24 concludes with the future of mediation in Nigeria. The Authors are of the view that, given the rapid expansion of ADR around the world, it is not inconceivable that it may one day replace litigation in civil matters.

Annexures - there are two Annexures with Appendices. There are also Tables of Statutes, and Cases and Bibliography.

General Comments The objective for writing this book was clearly stated in the Preface – putting something down from the experience of the Authors, for the coming generation to learn from. I asked myself, was the objective achieved? From merely looking at the Table of Contents, I think that the aim is achieved. The concise title of the book – ‘Handbook of Arbitration and ADR Practice in Nigeria’, aptly defines the subject matter, scope and spatial domain. The book is extensive, in its coverage. Those interested or engaged in the area of arbitration and ADR practice, seeking more profound knowledge of the law and practice, will find the book particularly informative. The Authors have demonstrated their considerable wealth of experience and scholarship, from which readers should benefit.

I also asked myself, how does this work stand with other works in the area of arbitration and ADR in Nigeria? It is the first work in the area of arbitration and ADR, with particular emphasis on mediation. It is the only text in Nigeria, that has exhaustively discussed arbitrability and third party funding.

The style of writing is simple, and easy to read. It is written in a fluent language, exudes scholarly prescience coupled with analytical vigour, and is user-friendly. It is a valuable book for the student, academics, judicial officer, practitioner, and researcher, who desires to keep up to date with developments in arbitration and ADR in Nigeria.

I commend the book, to all who have an interest in arbitration and ADR.