COMMUNIQUÉ OF THE NIGERIAN INSTITUTE OF CHARTERED ARBITRATORS ANNUAL CONFERENCE AND INVESTITURE AWARDS CEREMONY

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.