Nigeria must tackle insecurity for arbitration to grow — Rhodes-Vivour

Mrs Adedoyin Rhodes-Vivour is the Chairman, Nigerian Branch
of the Chartered Institute of Arbitrators, United Kingdom. In this
interview with OLADIMEJI RAMON, she speaks on
the gains of arbitration and other Alternative Dispute Resolution
mechanisms in Nigeria.

Obsolete laws have been one of the factors limiting the
growth of arbitration in Nigeria. How successful has the
arbitration community in the country been in its engagement with
the National Assembly to modernise the relevant laws?

I will not generally say that Nigeria’s arbitration laws are
obsolete though they are due for review in some respects. The most
up-to-date arbitration law is the UNCITRAL Model Law 2006 and the
UNCITRAL 2010 Arbitration Rules.

The UNCITRAL Law is an update of the Model Law of 1985 whilst
the Arbitration Rules is an update of the Arbitration Rules of
1976. Indeed, Nigeria is credited with being the first country in
Africa to adopt the UNCITRAL Model Law of 1985 through the
promulgation of the Arbitration and Conciliation Act CAP A18 LFN
2004 (ACA). However, the Federal ACA is yet to be revised in line
with the latest UNCITRAL revisions, but an updated bill is
presently before the legislative house and we do hope that the bill
will be passed into law soon.

In 2009 Lagos State did pass the Lagos State Arbitration Law
which is based on the recent revisions to the 2006 UNCITRAL Model
Law. The only arbitration laws which can be regarded as obsolete in
Nigeria are the Ordinance-based laws of 1914 which were based on
the English Arbitration Act of 1899 that remain in the statute
books of some states in Nigeria. These laws should be repealed.

The CIArb Nigeria Branch, alongside other arbitral bodies,
continues to play a pivotal role in advocating for the reform of
the legal framework for arbitration in Nigeria, with a view to
having an up-to-date legal framework with all its
ramifications.

Nigeria aspires to join leading arbitration-friendly
countries like the UK, Singapore. How will you rate the efforts
being made at providing the needed infrastructure and enabling
environment to achieve this aspiration?

Nigeria needs to make a concerted effort for a favorable
atmosphere for the growth and development of ADR and arbitration.
Much has been done. Nigeria has a relatively modern arbitration law
which hopefully will soon be updated in line with the latest
revisions to the UNCITRAL Model Law. Nigeria is host to the
Regional Centre for International Commercial Arbitration, Lagos.
The Lagos State Government was also supportive in establishing the
Lagos Court of Arbitration under Law 10 Laws of Lagos State which
established the first commercial court of arbitration in the
country. Nigeria has a range of arbitral institutions, including
the Maritime Arbitrators Association of Nigeria, Lagos Chamber of
Commerce International Arbitration Centre, and the Society of
Construction Industry Arbitrators. These institutions are making
efforts to advance and encourage professional knowledge of
arbitration in Nigeria and to ensure the development of Nigeria as
resource for arbitration in dispute resolution.

There is a growing number of Nigerian lawyers who have developed
specialist arbitration skills. Nigerian Courts have developed
arbitration-friendly jurisprudence. Nigeria’s goal should be
targeted at establishing a reputation as a preferred arbitration
seat in line with the CIArb’s centenary principles on safe seats of
arbitration. Countries wishing to be regarded as safe seats need to
have modern arbitration laws, independent judiciary, independent
legal expertise, education, right of representation, accessibility
and safety, facilities, ethics, enforceability and arbitral
immunity.

However, there is still a lot to be done. The arbitral community
cannot do it alone. The three arms of government, arbitral
institutions and stakeholders in the arbitral community need to
work together to place Nigeria on the world map of arbitration and
meet the standards of the traditional centres — London, Paris, New
York and the successful emerging centres like Singapore. In
particular, we need to pay a lot of attention to our infrastructure
and address security issues. Arbitration activities, particularly
international arbitration activities increase in stable and
reliable environments.

There is a belief that arbitration, though faster, is
rather more expensive than litigation. As the Chairman of the
CIArb, are there any efforts by the institute to create packages
that combine efficiency with cost effectiveness?

Arbitration is a flexible procedure. Parties who understand the
procedure or who are advised by knowledgeable counsel are able to
tailor the arbitration proceedings in a cost effective manner. I
will give you some examples. A three-man arbitral tribunal is
generally more expensive than a one-man arbitral tribunal. Why have
a three-man tribunal for a simple, less complicated dispute or one
which involves relatively low monetary claims? In such an instance
even if the arbitral clause provides for a three-man tribunal,
parties can agree that the dispute be resolved by a sole
arbitrator.

Furthermore, counsel and parties should avoid unnecessary delay
in the proceedings which can all add to the cost. In any event, we
must appreciate that arbitration is a private mechanism not funded
by government and whilst the process may initially appear
expensive, in the long run, expeditious resolution of a dispute
through the process of arbitration saves cost and financial ruins
amongst other benefits. Parties should also prior to arbitration
explore mediation which is a relatively cheaper process.

In July 2017, the CIArb Nigeria Branch launched its Micro, Small
and Medium Enterprises Arbitration Scheme to provide for simple,
cost-effective and timely resolution of disputes within stipulated
strict timelines. The branch scheme which is tailored along the
lines of the headquarters’ business arbitration scheme was
developed to promote and facilitate access of Micro, Small and
Medium enterprises to cost effective arbitration for resolution of
commercial disputes. The scheme also offers the mediation option.
MSMEs are called upon to take advantage of the CIArb’s MSME
scheme.

Has the Judiciary shown enough commitment to the
promotion of ADR in the country?

The Nigerian judiciary is supportive of ADR. We must remember
that ADR has always been part of the Nigerian legal system. The
various High Court Laws of states expressly provide that the courts
may promote reconciliation amongst the parties, encourage and
facilitate amicable settlement of disputes. The Lagos State
Judiciary pioneered amendments to the High Court Rules by providing
case management. Cases are screened and parties have to confirm
efforts that have been made towards amicable resolution. The Lagos
State Multi-Door Courthouse was established in 2002 and since then
various other state high courts have followed suit.

The National Industrial Court of Nigeria has established
Alternative Dispute Resolution centres to resolve disputes arising
from labour, employment, industrial relations and workplace between
parties using the process of mediation and/or conciliation. The
Civil Procedure Rules of the National Industrial Court of Nigeria
also provides that the President of the court or a judge of the
court may refer for amicable settlement through conciliation or
mediation any matter filed in any of registries of the court to the
Alternative Dispute Resolution centre established within the court
premises.

The Court of Appeal of Nigeria recently introduced appellate
mediation and a mediation centre has been established within the
Court of appeal. The Chief Justice of Nigeria, Hon. Mr Justice
Walter Samuel Nkanu Onnoghen GCON, has made various policy
pronouncements on the need for courts to ensure compliance of the
parties with arbitration clauses and declining jurisdictions in
matters involving valid arbitration clauses.

In my view, the Nigerian judiciary is supportive of ADR;
however, it is for litigants to take advantage of the various
opportunities for ADR and for their lawyers to advise them
accordingly. Nigerians must move away from our present litigious
attitude which only adds to the case load of our judges and causes
delay in our justice delivery system apart from the negative impact
on parties and their relationship.

What are some of the success stories of ADR in Nigeria,
including those of the CIArb, in deepening the acceptability and
growth of arbitration among Nigeria litigants?

The CIArb’s focus is education and training. Its rigorous
training programme is recognised worldwide and has resulted in more
internationally recognised African dispute resolvers. The
availability of well-trained and experienced arbitrators encourages
the recognition of particular jurisdictions as seats of
arbitration. The CIArb’s work in Africa has resulted in an increase
in the number of arbitrators in Nigeria and indeed in Africa.
Recently, in a 2018 survey conducted by School of Oriental and
African Studies, University of London the CIArb’s work in Africa
was recognised. The survey identified the CIArb as the primary
arbitration training provider in Africa.

The CIArb Nigerian branch’s annual conference is in its
19th year; what is the focus of the conference this
year?

The theme for our 2018 annual conference is “Arbitration and ADR
in Africa: Challenges, Gains and Lessons for the Future.” It is
focused on contemporary frontline issues in arbitration and ADR in
Africa.  The topics have been carefully chosen to give insight
into the challenges facing the development of arbitration in
Africa, the gains we have achieved and the way forward for
arbitration in Africa.

The conference gives us the opportunity to ask ourselves
questions, to learn from the experience of other climes and to
assess our capability and capacity in the field of international
dispute resolution. We have delegates and speakers from different
regions of the world and the event is expected to be a great
learning and networking experience.

Culled from Punch