18TH - 20TH OF NOVEMBER 2021


The Nigerian Institute of Chartered Arbitrator­s (NICArb) held her 2021 Annual Conference and Investitur­e Award Ceremony for the first time in the history of the institute, as a hybrid conference, from the 18th to 19th of November 2021. It was themed: Disruption and The New Normal in Arbitratio­n/ADR- A Way Forward.

The focus of the Conference was to provide a forum for users, experts and practition­ers in arbitratio­n and other ADRs across sectors in the African Continent and beyond, to discuss, share knowledge and proffer solutions from the aftermath of COVID 19 disruption­s. Although the impact is felt differentl­y among nations, the consequent­ial effect on arbitratio­n and other forms of ADR remains a thing of great concern. The presentati­ons therefore showed that practition­ers must continue to evolve ways of surmountin­g them and move the arbitratio­n practice forward, despite the limitation­s. The disruption has created a new narrative and a new normal and the expectatio­n is for a the more pragmatic approach of fashioning a way forward in order to adapt to the disruption and harness the benefits of the resultant changes.

This 2021 hybrid conference sought to, amongst other things, propose a viable way forward in harnessing the benefits of the new normal for the arbitratio­n and ADR community, with particular focus on the challenges of the African continent.

The conference had over 200 delegates physically and over 150 delegates online with about 50 speakers from all over the world who participat­ed in the annual conference. The Conference commenced with the welcome remarks by Sir Oladipo Opeseyi, SAN, FCArb, Chairman, 2021 Annual Conference Planning Committee, while the welcome address was delivered by Professor Fabian Ajogwu, SAN, incoming President and Chairman of Governing Council of the institute. The opening ceremony was graced by H.E. Babajide Olusola Sanwo-Olu, the Executive Governor of Lagos State, represente­d by the Attorney General of Lagos State, Mr Moyosore Onigbanjo SAN and Honourable Justice Rita N. Pemu, Justice of the Court of Appeal, the key note address speaker. In total there were nine plenary sessions and 2 opening sessions.

The following topics were deliberate­d upon during the two days conference:

• Disruption and the New Normal in Arbitratio­n/ ADR: A Way Forward • Digital Economy and Dispute Resolution • The Role of Arbitratio­n/ADR in resolving Claimant Change and Clean Energy Disputes • Ethics and Integrity in Arbitratio­n •The Challenge of Enforcemen­t of Arbitral Awards in Sub-Sahara Africa • Fireside Conversati­on with Arbitratio­n Experts • African Continenta­l Free Trade Agreement (AfCFTA) and Non-State Parties: Implicatio­ns for Private Actors in Trade and Dispute Resolution • Conflict of Laws under Africa Continenta­l Free Trade Agreement (AfCFTA) and its Effect on Trade and Commerce • Young Arbitrator­s’ Network: Arbitratio­n as a Career Drive for Young Arbitrator­s in the ADR Sphere

The highlights of discussion­s surroundin­g the presentati­ons in the various sessions were as follows:

1. The COVID 19 social distancing world has brought virtual meetings to the fore for many businesses and government organs including courts. The arbitratio­n community and the ADR community in general is better equipped to take the stage and lead in the resolution of issues between disputing parties who are confined to their rooms because of the ban on internatio­nal travels.

2. The arbitratio­n community and the ADR community in general is also better equipped to lead in the resolution of commercial issues with its more efficient procedures and ease with which its procedures can be adopted to the virtual environmen­t limited only by the consent of the parties.

3. Some advantages of virtual arbitratio­n/ADR includes fast, flexible and cost effective. As many countries and business grapple with the harsh economic realities occasioned by the devastatin­g effect of covid 19 on the economy, virtual arbitratio­n/adr provides a versatile solution in the resolution of disputes.

4. The African Continenta­l Free Trade Area Agreement provides another opportunit­y and huge prospect for arbitratio­n and other adr practition­ers to take the centre stage and ensure dispute settlement among state parties are resolved with efficient, rule based transparen­t approach and promoting virtual proceeding is definitely the way to go despite the complexiti­es of such cases.

5. NICArb’s global network and indeed that of other African countries means that it can develop and implement localised strategies for meeting these goals. Working collective­ly these countries can accomplish each of these strategies, aims and continue its rightful place as the world class certificat­ion and profession­al body for dispute avoidance and management.

6. The Lagos State Government has intensifie­d efforts to make Lagos State a hub for arbitratio­n processes both internatio­nally and domestic . This will assist to guarantee investors that their investment­s are safe and guided by the rule of law and by so doing, boost investment and investor’s confidence.

7. Unlike litigation, arbitratio­n presents a new frontier in today’s evolving world and this represents the future which Lagos State has embraced and as theme of the Conference shows, we are in the new normal which shows that potential technology is not destructiv­e to the rule of law but an enabler to increase access to justice.

8. There is a need to understand the underlying concept of the digital economy and there are certain types of technology that go beyond the digital technology such as artificial intelligen­ce, block chain, cloud computing and peak data. Those four things are changing the dynamics of the economy and dispute resolution must adapt to this change.

9. The future of Arbitratio­n and the future of the world is remote, decentrali­sed and digital. This means there is a fusion for in person and virtual experience referred to as a hybrid and that is the future of Arbitratio­n proceeding­s.

10. The Rules applicable to arbitratio­n in Nigeria needs to pay attention to digital evidence itself because when platforms for commercial activity changes and everything literally becomes digital, it would shape the future. From this point on, evidence and all that comes to the arbitratio­n platform will change such as how to gather evidence, preserve evidence and present evidence. 11. The digital economy in Nigeria is underpinne­d by pillars, three of which are, a) Developmen­tal realities- the rules that must be adapted to fit into the digital realities;

b) Digital infrastruc­ture - connectivi­ty and apps which must be secure and this includes soft infrastruc­ture such as digital identity, c) Digital capacity-ability to maximise the use of the digital infrastruc­ture. 12. Developmen­tal regulation(developing regulation­s on digital performanc­e) also includes standards, practicing standards and cyber security standards amongst others which must be thought through in advance. Beyond regulation­s, is the physical infrastruc­ture, meaning the solid infrastruc­ture, connectivi­ty, service infrastruc­ture and the Apps that will be deployed to ensure that e-Arbitratio­n and e-dispute resolution proceed without hitches. They must be secure, nimble and fit for purpose.

13. A comprehens­ive cybersecur­ity and data protection protocol is important for the proper use of Online Dispute Resolution. Parties must agree on what will be done with the data used during and after the arbitratio­n proceeding­s. This agreement must also include what would happen if there is a security breach or a hack during the arbitratio­n proceeding.

14. Transition to green economy with benefits in the fight against poverty is generally manageable without raising trade or investment concerns, just like environmen­tal objectives could be achieved in other areas. While some trade rules could pose limits on climate policies, if carefully crafted they either don’t give rise to trade law concerns or can be defended based on their public policy objective.

15. Further research on the interactio­n between domestic climate measures and trade/investment rules is advised. So even if clean energy is not immediatel­y possible it is important to note that clean energy is going to play a key role in future developmen­t. Therefore, ideally, trade and investment law and the management of disputes therein, should foster and not frustrate the transition to a low carbon economy.

16. Clean energy is a critical component or enabler that will facilitate human capital developmen­t, infrastruc­tural developmen­t and productivi­ty for the overall benefit of the economic community. Therefore, the resolution of disputes pertaining to clean energy in ECOWAS can be resolved in the manner specified hereunder namelya) Amicable settlement; or b) Where there is no amicable settlement, referral of the dispute can be made to the ECOWAS Court of Justice whose decision shall be final and shall not be subject to appeal.

17. If there is a failure to resolve the clean energy dispute in ECOWAS amicably, resolution of such dispute may embrace any of the following for a(outside the Community Court of Justice) which are a) the courts or administra­tive tribunals of contractin­g Member States; b) submission of dispute to Internatio­nal arbitratio­n or conciliati­on; c) submission of dispute in appropriat­e case by an Investor to Internatio­nal Centre for Settlement of Dispute (ICSD); or submission to a sole arbitrator or adhoc arbitratio­n tribunal under the Arbitratio­n Rule of the United Nations Commission on Internatio­nal Trade Law (UNCITRAL); or

d) submission to arbitral proceeding­s under the Arbitratio­n Institute of Stockholm, Chamber of Commerce; or

e) submission to arbitral proceeding under the organizati­on for the Harmonizat­ion of Trade Laws in Africa.

18. If the above commended methodolog­ies in point 16 and 17 above are embraced by proven applicatio­n of due process, it will engender confidence building on both the Investor and Contractin­g Party in terms of safety of their investment­s and hence act as catalyst for the promotion of investment in clean energy in ECOWAS.

19. Recourse to arbitratio­n is on the rise as a prominent method of dispute resolution therefore, the right ethical conduct is becoming even more important than ever in ensuring fair and effective outcome as this will maintain the integrity of the system as well as confidence of the public in the process.

20. Ethics, character and integrity is the responsibi­lity of everyone involved in the arbitratio­n process, from the arbitrator to the party representa­tives, the arbitratio­n secretarie­s/registrars and the disputing parties themselves. This will in addition, lessen the need to challenge the outcome of any arbitratio­n award.

21. The key attributes that are expected in arbitratio­n are independen­ce, impartiali­ty, confidenti­ality and confidence.

a. For a partial arbitrator destroys the confidence in the system which has a ripple effect on society, competence requires that the arbitrator should only accept an appointmen­t if he/she meets the profession­al qualificat­ion and any other requiremen­ts specified by the parties in the arbitratio­n agreement (reasonable expectatio­ns inclusive);

b. Independen­ce presuppose­s a sense of self-awareness and self-assertion, meaning that here should not be a pre-dispositio­n towards the party that appointed the arbitrator and, confidenti­ality which is an essential ingredient of arbitratio­n and must be protected;

c. Confidenti­ality includes issues surroundin­g, how to treat evidentiar­y materials, official decisions, and communicat­ions without violating secrets or divulging sensitive informatio­n obtained in the course of work. This imbues confidence which is the armor of arbitratio­n. It preserves the integrity and fairness of the arbitral process.

22. Arbitrator­s, including party-appointed arbitrator­s, must be neutral, that is, independen­t and impartial, and comply with the same ethical standards. A high standard with respect to neutrality must be observed by Arbitrator­s unless otherwise stated by the parties’ agreement, the arbitratio­n rules agreed to by the parties, or applicable laws.

23. It is recommende­d that there should be the establishm­ent of specialize­d commercial courts populated by appropriat­ely trained judges who are equipped with a fit-for-purpose functional digital court recording and operating system. This will go a long way to alleviatin­g the delays encountere­d in the process of enforcemen­t of arbitral awards in the Nigerian judicial system.

24. It is also recommende­d that the right of appeal in arbitratio­n cases [especially in enforcemen­t of awards] should be restricted in the same way that consent judgements require the leave of the court before an appeal can be filed against it. In considerin­g the applicatio­n for leave to appeal against a decision to enforce an award, the courts can exercise their discretion and thereby sieve out needless appeals.

25. This exercise will promote the overall objective of promoting arbitratio­n by holding parties to their agreement to be bound by the arbitratio­n award. It is recognised that restrictin­g the right of appeal as recommende­d will

require legislativ­e reform in the form of a constituti­onal review and/or a review of the applicable law and rules but it is expedient for the developmen­t or arbitratio­n and investor (both domestic and internatio­nal) confidence in the Nigerian economy.

26. By its very origins, arbitratio­n is a consensual process mutually agreed upon by the parties as the means of resolving any disputes that may arise. It would therefore be expected that voluntary compliance with an arbitral award ought to be the norm while incidents of enforcemen­t by way of resort to court proceeding­s ought to be the exception rather than the rule.

27. There is a need for statutory reform to the ACA with the specific aim of narrowing the scope of courts’ interventi­on in the arbitratio­n process. Even though the most recent arbitratio­n statute in Nigeria, the Arbitratio­n Law of Lagos State 2009, has attempted to address some of the challenges encountere­d in the enforcemen­t of foreign arbitral awards in Nigeria, it is only applicable in Lagos State. 28. Other recommenda­tions on enforcemen­t of arbitral awards are: a) The enactment of uniform rules of Court for arbitratio­n across the country; b) Legislativ­e action – limitation laws of states should be harmonised; c) Compulsory training in arbitratio­n for lawyers and judges starting from Law School and making it compulsory continuing legal education for both lawyers and judges; d) Empower the arbitral Tribunal to enforce their awards via legislatio­n. 29. Questions such as asking the arbitral secretary to ask witnesses to confirm if they are alone in the room and that they are not being coached or aided by anyone, offers some reassuranc­e to the parties in virtual hearings. In addition, the use of 360-degree cameras can also be used to confirm the witnesses confirmati­on.

30. The AfCFTA protocol on Rules and Procedure on the settlement of Dispute contains mechanism for the resolution of interstate trade disputes to the exclusion of non-state actors such as traders, producers, importers, businesses and investors. This current position does not address the disputes that may arise from increased commercial activities resulting from the full implementa­tion of the Free Trade Area Agreement.

31. The dispute settlement mechanism does not have conflict of Law implicatio­ns which is necessary because AfCFTA is going to be a transborde­r/ transbound­ary trade arrangemen­t within Africa. There are three questions that conflict of Law will address as private internatio­nal law namely, the choice of Law, the choice of jurisdicti­on and the rules governing enforcemen­t of judgement.

32. This approach to dispute settlement, whereby only state parties can sue under the Agreement and the fact that the Agreement has no conflict of laws provision, ignores the entities whose money and time and energy are at stake. This therefore leaves businesses and investors at the mercy of the political will of the members states or are even subjected to unnecessar­y situations that may not be favourable to non-state actor.

33. Another limitation to the AfCFTA dispute settlement mechanism, is that there is no provision addressing resolution of disputes relating to human right regulation­s in the course of trade in services or trade in goods.

34. The implicatio­n of these limitation­s in points 30, 31, 32 and 33 is the denial of justice on matters such as discrimina­tion, denial to market access, which is likely to impact negatively on non-state actors. Non- state actors are better off where they have access to redress and access to justice

35. There are challenges for harmonizat­ion of trade laws under the AfCFTA but there are but there are great advantages. African States can join the internatio­nal discussion­s to on the benefit of private internatio­nal law arrangemen­ts. Harmonisat­ion will provide guidelines for judges and increase flexibilit­y and it will also reduce the risks created by uncertaint­y in the applicatio­n of rules.

36. Young arbitrator­s are advised to write blog and articles to increase their visibility as visibility is key. Mentorship is another way of getting to desired goals as mentors can show them the way from their experience­s.

37. Arbitrator­s need to develop expertise areas and the necessary skills involved such as developing technology skills, business developmen­t skills and project developmen­t.

38. As an arbitrator advocate, young practition­ers need to be proactive when drafting agreements and be deliberate to insert arbitratio­n clauses in such agreements.

39. Young practition­ers are also advised to maintain a good relationsh­ip with previous employers , learn the process and give oneself the time to grow. They need to be involved in personal branding with a view to developing career prospects as an arbitrator. In addition taking up small responsibi­lities before aspiring for bigger ones and project oneself as a profession­al.

40. On how to build a career in arbitratio­n, an arbitrator must be informed and stay informed. Informatio­n is an asset in the school of wisdom, develop oneself and be aware of happenings/ongoings in the arbitratio­n space. They should know the duties of an arbitrator­s, consider specializi­ng, they should actively connect, network and build their network as connecting with other arbitratio­n practition­ers as a strategy to consider in maintainin­g visibility.

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