Regulatory Powers And The Use Of Alternative Dispute Resolution Processes

By Valentino-Buoro

The place of regulation in government business cannot be overemphasised. Most regulations have their foundations in administrative law wherein the lawmaker empowers an agency or statutory body to make subsidiary legislation by way of drawing up specific rules to carry out the intentions of a national or state law.

Such statutory organisations may in themselves be classed a regulatory authority. In this respect, the regulatory authority evolves as an autonomous enforcing body created to oversee and enforce regulations in specific or identifiable governmental or economic sectors.

To ensure that the highest standards are attained in their areas of coverage, regulatory bodies engage the services of top-notch professionals as staff members. These experienced persons who are knowledgeable in the complexities of regulations and how best to enforce them, serve as the face of the agency in its dealings with members of the public

The Nigerian maritime industry boasts of a number of regulatory bodies. These include the Nigerian Shippers Council (NSC), the Council for the Regulation of Freight Forwarding in Nigeria (CRFFN), the Nigerian Ports Authority (NPA) and the Nigerian Maritime Administration and Safety Agency (NIMASA) to mention a few. These agencies regulate the sub sectors of the industry.

For instance, the Nigerian Ports Authority (NPA) and the Nigerian Inland Waterways Authority (NIWA) are the two regulatory authorities saddled with the responsibility of administering the operation of jetties in Nigeria, including the issuance of licenses for the erection, alteration, extension or removal of jetties. The Nigerian Maritime Administration and Safety Agency on the other hand is responsible for regulation related to Nigerian Shipping, maritime labour and coastal waters.

The Nigerian Shippers Council was a few years ago appointed the economic regulator of the maritime industry with wide and varied responsibilities that touch on the day-to-day commercial operations at the seaports. These include monitoring and enforcing standards of service delivery, ensuring stability, accessibility and adequacy of services; determining and causing to be published guidelines for the registration of regulated service providers as well as providing guidelines on tariffs and charges (setting minimum and maximum levels) in order to guard against abuse of monopoly or dominant market position. Its other responsibilities include to regulate market entry and exit; perform mediatory role among stakeholders; establish accessible and modern dispute resolution mechanism and minimize the cost of doing business and its inflationary effect on the Nigerian economy.

Industry observers are agreed that among the several regulatory agencies of the Federal Government operating in the industry, the Nigerian Shippers Council takes the lead in the promotion of alternative dispute resolution as the preferred option in managing the professionals and organisations subject to its authority.

Aside its enabling Act, other policies that guide the mandate of the council have left no one in doubt that mediation and other ADR processes remain the first option in the management of disputes and infraction of provisions of its mandate. In staying its course in this regard, the council has come under the criticism of conservatives whose mental picture of a regulatory authority is one of a giant wielding the big stick to beat its subjects into line. How so wrong.

It is certainly myopic to think that regulatory bodies have no business with alternative dispute resolution. Though their mandate is to keep an eye on all members of a regulated community to ensure compliance with provisions of the law, enforcing regulations and encouraging compliance is certainly better served through the most cost effective, least adversarial, and best communicative process to ensure that the policies underlying regulations are understood.

Those that are subject to any law will be more enthusiastic to obey them if appropriate authorities get their buy-in by explaining the rational behind the cold letters of statute. No doubt litigation is fast losing its allure because of its complexity, technicality and delays. That notwithstanding, it remains what majority of the people are familiar with and would rather take the risk.

In the province of enforcement of regulations, the default procedure is substantial litigation. This, however, creates an atmosphere of antagonism and distrust in a world that is getting more and more liberal and knowledge driven. It is therefore advisable to cut costs and encourage compliance through effective communication, which is the hallmark of mediation.

In the advanced countries of the world, more and more governments are enacting legislation in alternative dispute resolution for the use of regulatory bodies. In my opinion it will not be out of place for the Nigerian Shippers Council to set up a Maritime Mediation Centre for the use of all industry stakeholders. There is an army of serving and retired industry specialists who can be trained to serve as mediators and co-mediators with non-industry specialists that will bring to the table other key professional input. Having taken the lead in instituting its own ADR processes, the council should consider taking a further step to entrench same in the industry by establishing the maritime mediation centre.