Nigerian Arbitrators Battle Job Loss To Foreigners

Oladimeji Ramon

Experts say Nigeria has a large pool of competent arbitrators
and other Alternative Dispute Resolution specialists. At the
moment, there are no fewer than seven ADR institutions in the
country and more are springing up.

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