‘6th ICC Arbitration Conference Will be a High-Powered Event’
Nigeria has no doubt come into a clear lead, in the Arbitration community in Africa. In the quest to deepen arbitration practice in Nigeria and make the country the arbitration hub in Africa, the International Chamber of Commerce Nigeria (ICCN) Arbitration & ADR Commission is scheduled to hold its 6th ICC Africa Arbitration Conference at the Civic Centre and Eko Hotel, both in Victoria Island, Lagos on 1st - 3rd June, 2022. Onikepo Braithwaite and Jude Igbanoi talked to the Chairman of the ICCN Arbitration & ADR Commission, Mrs Dorothy Ufot, SAN, on the preparations for the Conference at which the first female President of the institution, Ms Claudia Salomon, and the Director General of the World Trade Organisation, Dr Ngozi Okonjo-Iweala are expected to speak. Mrs Ufot, SAN, the current holder of the prestigious African Arbitrator of the Year Award, also expressed her views about other burning national issues, including the new law to criminalise payment of ransom for kidnap victims
Arbitration has gradually been entrenched in our justice delivery system, but a lot of arbitral awards still end up in the courts. For some, arbitration is merely a first step towards litigation. Although we have seen the courts in recent times declining jurisdiction over arbitral awards, how can this narrative be changed so that arbitration will become more deeply entrenched here?
Arbitration remains the preferred mechanism, for the settlement of domestic and international business disputes in Nigeria. Given the relationship between arbitration and investment, the arbitration industry in Nigeria has been a beehive of activities in recent years, and as you rightly put it, arbitration has become entrenched in our justice delivery system. There is no doubt that, quite a number of awards still end up in the courts. This is however, not peculiar to Nigeria or Africa alone. Awards end up in the courts all over the world, but I will admit that this is more prevalent in Africa. When an award is published and the losing party voluntarily complies with the terms of the award, then there is no need to resort to the courts for the recognition and enforcement of the award. However, where the losing party fails to comply with the award, the winning party will need to seek the assistance of the court for the recognition and enforcement of the award in accordance with the provisions of the Arbitration and Conciliation Act, Cap A18, LFN 2004. Likewise, where a losing party is aggrieved by the decision of the arbitrator, the law permits him to seek the setting aside of the award in court under the grounds provided in the Arbitration Act. Every arbitration agreement provides that the resultant award is final and binding. Unfortunately, many contracting parties do not appreciate the purport of this provision, when entering into a contract containing an arbitration clause or an arbitration agreement.
We can stem the tide of arbitration awards ending up in court and change the narrative about arbitration and being disputing a first parties step to commit litigation, to honouring if contracting the award, parties have no matter been given the outcome, equal opportunity provided all to present their case and due process has been followed by the arbitrators. The parties, their counsel and representatives must all commit to the success of the arbitration process which they have voluntarily entered into and agreed to be binding on them. Counsel must be knowledgeable about the arbitration process and advise their clients on the need to honour the award, even if the award is not favourable to them, provided the right things have been done by the arbitral tribunal. Counsel and indeed, all parties, must adopt a pro-arbitration stance and shun guerrilla tactics during arbitration proceedings, if this narrative must change.
The arbitral tribunal must be knowledgeable and fair to all parties, giving them equal opportunity to present their case. The Tribunal must shun corruption and at the conclusion of the hearing, publish an enforceable award. The Nigerian courts have a very important role to play in changing this narrative. The courts must continue to be arbitration friendly, and shun applications for anti-arbitration injunctions. Awards must be set aside, only on the grounds prescribed by the Arbitration and Conciliation Act, 2004 and the New York Convention. All hands must be on deck in order to change this narrative, and ensure that arbitration becomes more deeply entrenched in Nigeria.
Today, there are so many arbitration bodies in Nigeria. How can we ensure cohesion amongst these bodies, to instil confidence in arbitration by disputants? It is one thing to establish an arbitration institution, and another for the institution to be viable and internationally recognised as the go to arbitral institution for the resolution of business disputes. It is not the number of arbitral institutions that matters. What matters is the viability of the institution, and maintaining a viable and internationally comparable arbitral institution that is capital intensive. We need independent and world class arbitration institutions with modern and internationally comparable facilities, such as obtains at the ICC Court of Arbitration in Paris, the Maxwell Chambers in Singapore, the Arbitration Place in Toronto and the re-modelled HKIAC Centre in Hong Kong, to mention a few.
In order to instil confidence in the users of the process, our arbitration institutions must embrace international best practices and embark on aggressive marketing and sponsorship of international arbitration programmes, in order to achieve market presence and gain international recognition and acceptability. The truth is that competition is rife even among the well-established arbitration institutions around the world, and several institutions are in a race to be the preferred institution for the users of arbitration services globally, such as the ICC International Court of Arbitration which is referred to in international arbitration circles as the best international arbitration institution in the world. Accordingly, the issue goes far beyond merely naming a place an international arbitration centre.
The proliferation of arbitration institutions in Nigeria is not in doubt, as several arbitration institutions have been established in Nigeria in the last 10 or more years, including the International Chamber of Commerce (ICC) Nigeria Arbitration and ADR Commission.
As a leading expert in ADR, what in your view can be done urgently to make Nigeria an attractive choice and arbitration hub in Africa?
One of the critical determinants of the choice of a seat in international arbitration is the legal framework for arbitration in the proposed country, evidenced by a contemporary and modern national arbitration legislation. The legal framework for arbitration in Nigeria is the Arbitration and Conciliation Act (ACA) Cap A18 LFN 2004, which applies throughout the Federation of Nigeria. The ACA is 34 years old, having been promulgated by Military Decree in 1988. One of the acknowledged challenges for making Nigeria an attractive destination for international arbitration is this obsolete law which has long passed its sell-by-date, in view of the enormous changes and progress that have been recorded in the field worldwide, since the promulgation of the ACA in 1988.
Arbitration practitioners have clamoured for a review of the Arbitration and Conciliation Act for several years, in order to bring it up to the standard of modern arbitration legislation around the world. Happily, the Nigerian Senate heeded this clarion call on 10th May, 2022 by passing a Bill to enact the Arbitration and Mediation Act, to provide a unified legal framework for the settlement of commercial disputes. The Arbitration and Mediation Bill seeks to repeal the Arbitration and Conciliation Act, Cap A18, LFN, 2004. The Bill also seeks the application of the Singapore Convention, on the International Settlement of Disputes resulting from mediation. The Bill is presently awaiting the President’s assent, to be enacted into law.
Other suggestions for making Nigeria an attractive destination for International Arbitration include the following, which are not exhaustive:1) The Arbitration and Conciliation Act (ACA) requires an urgent review. This is being taken care of as we have heard.
2) Our Judges must support the arbitration process, and enforce arbitration agreements and arbitration awards as appropriate.
3) The Judiciary must adopt a consistent proenforcement stance, when dealing with enforcement of arbitration agreements and awards.
4) Recognition and enforcement of arbitral awards must be refused, only under the circumstances set out in Article V of the New York Convention and Sections 52(2)(b)(i) and (ii) of the Arbitration and Conciliation Act.
5) Nigerian Judges must be wary of granting anti-arbitration injunctions, except in exceptional cases that warrant the making of such orders, and must deal expeditiously with proceedings involving arbitration.
6) The procedure for enforcement of arbitral awards and agreements, must be simplified and expedited. One school of thought has canvassed the idea of the establishment of specialised courts or tribunals to handle matters relating to arbitration, similar to the Investments and Securities Tribunal, which exclusively handles capital market cases due to the speed with which such disputes are expected to be resolved.
7) Apart from ICSID awards which are enforced directly at the Supreme Court as the court of first instance, the length of time it takes for arbitration cases to get to the Supreme Court is embarrassingly excessive. This situation must be addressed, and the trend reversed.
8) The current security situation in Nigeria must be addressed.
9) We must deal with the perception of corruption, and our arbitrators must be men and women of knowledge, expertise and proven integrity.
10) Nigeria's political stability must be guarded jealously.
”The ACA is 34 years old, having been promulgated by Military Decree in 1988. One of the acknowledged challenges for making Nigeria an attractive destination for international arbitration is this obsolete law which has long passed its sellby-date, in view of the enormous changes and progress that have been recorded in the field worldwide….”