Nigerian Arbitrators Battle Job Loss To Foreigners

Among the existing ADR bodies in Nigeria are the Nigerian Institute of Chartered Arbitrators; the Nigerian branch of the Chartered Institute of Arbitrators, United Kingdom; the Negotiation & Conflict Management Group; the Institute of Chartered Mediators and Conciliators; the Lagos Court of Arbitration; the Lagos Court of Arbitration-Young Arbitrators Network; and the Lagos Chamber of Commerce and Industry International Arbitration Centre. In recent times, there have been louder advocacies for ADR in Nigeria, as the problems of delayed justice from the courts remain recalcitrant. The courts dockets are overspilling and the judges are groaning. The litigants are at the receiving end of delayed justice. Where commercial cases are involved, the country’s economy suffers too. With sustained advocacy, many big businesses are beginning to discover the magic of getting quick justice through arbitration and other ADR mechanisms. However, Nigerian arbitrators have a common headache – the increasing volume of arbitration cases in the country has not translated into more fortune for them. For now, the Nigerian arbitration community is battling a crisis of confidence from multinational companies that are reluctant to engage their services. These multinational companies, despite operating and making fortunes on the Nigerian soil, prefer to take their disputes outside to be resolved by foreign arbitrators. Speaking last week in Lagos at the 2018 annual conference of the Nigerian Institute of Chartered Arbitrators, a former President of the Nigerian Bar Association, Dr Olisa Agbakoba (SAN), drove the pains of the Nigerian arbitrators home by recounting a recent experience. He said, “I am a member of the London Maritime Arbitration Association and last year we did an extremely complex arbitration of about $500m and we decided the case in one sitting. “I was the only black face. The subject matter was Nigerian oil onboard a foreign vessel, raising money in Nigeria, yet all the arbitrators, the registrars, everybody was white. “In fact, somebody dared to challenge my cost and asked, ‘why was a black arbitrator brought from another continent?’ And I thought this was an arbitration that should have been in Nigeria. “Imagine if the NNPC has embedded in its contracts clauses that all its disputes must be resolved through arbitration in Nigeria; imagine the Federal Government insisting that to do business with us, arbitration must be here, undoubtedly, there will be work for us.” Agbakoba argued that the only way to get around the problem was to press the government for a national policy on arbitration. “A bulk of arbitration in Nigeria is getting done abroad and it is something that should challenge us very much. And I think there are a number of factors responsible for this. One is that we have not pressed the government enough to develop a national policy on arbitration,” he said. Agbakoba recalled how during his time as NBA President, he approached then Lagos State Governor, Mr Babatunde Fashola (SAN), and pushed for a state policy that would favour arbitration. He said, “I approached him (Fashola) and there were some policy initiatives by Governor Fashola, to the effect that all the trades and contracts that were entered into in Lagos State had embedded in them an arbitration clause making Lagos the venue and that created jobs. “We can’t sit down here and be training as arbitrators and becoming fellows and we don’t have jobs. The key thing in arbitration is to have work to do.” Agbakoba stressed that the world over, the trend of dispute resolution was rapidly shifting from litigation in the regular court to arbitration and other ADR mechanisms and Nigeria must not be left behind. The 2nd Vice-President of NICArb, Prof Fabian Ajogwu (SAN), had also a had a similar experience with Agbakoba, where a dispute between two companies operating in Nigeria was taken to London. Ajogwu recalled, “In July 2011, we were all air-bound to London; strangely, the claimant, the respondents, the respondents’ witnesses, the claimants’ witnesses, we were all headed for London to conduct an arbitration between an oil major and an oil service company. “Strangely, the sole arbitrator that was appointed by the London Court of International Arbitration was a Nigerian, in the person of Prof Fidelis Oditah, QC, SAN. “We arrived London and did the arbitration. What occurred to me was that if an alien was looking at us from above, he would have asked, ‘Didn’t they say these people are rational?’ Our actions were nowhere near rational.” Ajogwu blamed the lack of confidence in the Nigerian arbitration environment on the country’s consumption attitude and the ease and speed with which Nigerian courts set arbitral awards aside. “There is a reason why some of those arbitrations are shipped offshore. When we came back from London, NICArb, as an institution, approached an IOC, one of the biggest oil companies in the world, and asked, ‘Why don’t you give us your arbitration, allow us to appoint our members and let us do them in Nigeria?’; and their response was, ‘Well, we fear that sooner or later, you will set aside the arbitral awards; it is very easy to set aside arbitral awards in Nigeria. We know the scope – it has to be that the arbitrator misconducted himself or went beyond the scope – but in Nigeria, it is a wide field; arbitral awards are set aside at any cost’. “So, that explained why they were shipping their arbitration overseas where setting arbitral awards aside is a rarity,” Ajogwu said. He called on the Nigerian courts to support arbitration for the ultimate economic growth of Nigeria. “An arbitral award is a toothless bulldog, unless the court gives it the teeth to bite. The point I am making is that it takes two to get this done. What we need is the facilitative role of our courts. “Our courts need to understand that it is not a competition, nobody is usurping their powers under Section 6 of the constitution, rather, we’re decongesting the cause list and only coming to the court for its blessings, for the court to say, ‘you can go ahead to enforce the arbitral awards’. “And if we achieve that, we will be supporting economic growth not only in Nigeria but also in West Africa because at the end of the day, Ghana and other countries look up to us as the central point of ECOWAS.” However, the Presiding Justice, Court of Appeal, Lagos Division, Justice Mohammed Garba, who stood in for the Court of Appeal President, Justice Zainab Bulkachuwa, said the courts had long embraced ADR and that it was left for the lawyers to look inwards. He blamed lawyers who come to court to deploy various tactics to delay the enforcement of arbitral awards and ultimately frustrate them. Justice Garba said, “The courts, like the Nigerian Institute of Chartered Arbitrators, are stakeholders in the growth of the Nigerian economy. We have always been conscious of that. “With enforcement of arbitral awards, the court may be approached by litigants for either registration, enforcement or that the arbitral award should be set aside, on so many grounds – some of them outside the recognised and established laws and over an issue which should ordinarily be innocuous – they want to drag the case for whatever reasons. “And of course, because of our judicial procedures, our rules, the court, in most cases, is constrained to allow some of these issues to drag on unnecessarily and not in the interest of the parties themselves. “Reasons for setting aside an award are clearly defined but somehow we find other reasons being tenaciously canvassed by counsel before the court. Of course, the court will hear them and decide and after that, they go on appeal, up to the Supreme Court and, we all know, the appellate courts are not as fast as they are supposed to be. So, an issue that is supposed to last for one month at the most, will now take between three to five years. So, why will somebody from London, America or elsewhere want to come and spend his time and resources in Nigeria when he can do it elsewhere within a shorter time and less resources? “We need to really look at not only the courts. The courts in Nigeria are ready; in fact, it is in the interest of the courts that issues are settled by way of arbitration because we don’t like seeing our cause lists congested. “If matters, particularly of commercial nature, are settled through ADR, it is better for everybody; the courts in particular, because many of the matters that we now have before us will not be there. “The courts in Nigeria are willing and ready to partner parties that go to arbitration to settle their disputes and return to court for registration and enforcement. As long as there are no bottlenecks, the court will, within the shortest possible time, expeditiously register and enforce arbitral awards obtained either in Nigeria or from outside.” The President of the National Industrial Court, Justice Babatunde Adejumo, blamed the combination of wrong attitude of stakeholders in the Nigerian arbitration community and obsolete laws for the various factors creating confidence crisis for arbitration in Nigeria. He called for a change of attitude and upgrade of relevant laws so that Nigeria could join the league of countries making gains from arbitration around the world. Justice Adejumo said, “We’re talking about arbitration, we’re talking of the economic growth of West Africa, there can be no growth when there are judgments but no justice. “There is a difference between judgment and justice. We must be inward-looking; look at our enactments, in terms of our statutes and the various protocols and conventions that we have entered into. “I believe we are not making much progress; one is the law, the other is our own attitude. What have we done to move the National Assembly to look at how arbitration could be given sound footing in Nigeria?” He added that the challenges facing arbitration from the court should be blamed on lawyers. The judge said, “Our courts are another source of problem but the problem in the court is based on the attitude of our legal practitioners. They want to challenge all arbitral awards at all costs – either on jurisdiction or misconduct. They bring all sorts of problems and at the end of the day the court would have no choice but to grant their wishes and then what is supposed to take a week will now last for years. “If we want them to believe in arbitration in Nigeria, we must look at what it takes. If you go to WTO, France Arbitration Centre, Singapore Arbitration Centre and Dubai Arbitration Centre, you will see that they have gone very far.” Justice Adejumo also encouraged Nigerian arbitrators to register with international arbitration bodies and to attend conferences to build their network, so they could be called for jobs. On his own part, the President of the Nigerian Bar Association, Mr Paul Usoro (SAN), shared a tip on how to get quick arbitral award enforcement in the courts. Usoro, who was represented at the conference by the head of his chambers, Mr Muniru Liadi, encouraged arbitrators to ensure that their arbitral awards were made pursuant to the International Centre for Judgment Enforcement treaty, which allows arbitral awards to registered straight and enforced at the Supreme Court. This way, he said, they would have bypassed the possibility of appeals that would take long years to determine for arbitral awards registered at the high court. Culled from Punch]]>