The events of the 1st quarter of 2020 have left an indelible message— “normal” has changed. We have a new world to deal with courtesy of the COVID-19 pandemic.

One area that has benefited from this rude shock to our daily routine is the technology that allows us to bridge space and time to connect. So, while everything else seems to be headed south, technologies that promote virtual or remote human interactions have taken a northward leap.

As Chris Herd observed, “remote work has accelerated 10 years in 10 days”[1]. This is a reference to the speed with which businesses have had to implement remote working as a result of the COVID-19 pandemic. Businesses have been forced to shut their brick-and-mortar outlets and resort to remote work in record time.

This article looks at the impact of this shift on dispute resolution proceedings with emphasis on videoconferencing in arbitration. How can we keep dispute resolution on track in a virtual world? What are the best practices for maintaining fairness and due process in virtual proceedings? We will briefly review some of the international texts that can help in the quest to take dispute resolution to the virtual plane.

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[1]     Chris Herd; accessed @https://www.linkedin.com/pulse/remote-work-has-accelerated-10-years-days-chris-herd/ on 14/04/2020.

In Kenya, Arbitration is classified among the mechanisms commonly referred to as Alternative Dispute Resolution (ADR) and involves a neutral third party in the settlement of disputes. The Arbitration Act of Kenya, 1995[1] defines arbitration to mean ―any arbitration administered by a permanent arbitral institution or otherwise.[2] This definition has been termed by some scholars as not being an elaborate one and hence regard has to be had to other sources.[3] Arbitration has been described as a private consensual process where parties in dispute agree to present their grievances to a third party for settlement.[4] However, it has also been argued that Kenya‘s Arbitration Act contemplates both institutional and ad hoc arbitration as seen in the definition. Arbitration in Kenya is governed by various laws which include the Constitution[5], The Arbitration Act 1995[6], the Arbitration Rules, Civil Procedure Act[7] and the Civil Procedure Rules 2010[8] . Article 159(2) (c) of the Constitution provides that in the exercise of judicial authority, the Courts and tribunals must be guided by the principle of, inter alia, promotion of alternative forms of dispute resolution (ADR) including reconciliation, mediation, and arbitration.

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[1] No. 4 of 1995, Laws of Kenya ,Revised Edition 2012 [2010]

[2] Sec. 3, No. 4 of 1995 (2009)

[3] Muigua, K., Emerging Jurisprudence in the Law of Arbitration in Kenya: Challenges and Promises (Available at http://www.kmco.co.ke/index.php/publications/122- emerging-jurisprudence-in-the-law-of-arbitration-in-kenya-challenges-and-promises ); Google Scholar

[4] Farooq Khan, Alternative Dispute Resolution, A paper presented Chartered Institute of Arbitrators-Kenya Branch Advanced Arbitration Course held on 8-9th March 2007, at Nairobi.

[5] The constitution of Kenya (2010)

[6] No. 4 of 1995(As amended in 2009)

[7] Cap 21, Laws of Kenya

[8] Legal Notice No. 151 of 2010, Rules under Section 81, Cap 21

More than ever before, it has become evident that we live in an inter-connected world. As arbitrators, the idea of building an international arbitration practice and experience has become ever more significant. In this edition of LACIAC’s ADR Personality Special, Tsegaye Laurendeau, takes on a journey that demystifies the secrets to breaking into the international sphere, taking us back to the foundational qualities and essence of arbitrators – thus bringing a different dimension to the conversation.

Experienced or new to arbitration, you will enjoy reading Tsegaye perspective on building an international career as he lays bare the ‘tips for success’ in a pragmatic fashion, guarantying each one a good read.

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The International Institute of Business Intelligence (IIBI) in collaboration with the Lagos Chamber of Commerce International Arbitration Centre is organising a training on “Advanced Contract Drafting, Negotiation & Dispute Management”. This training is scheduled to hold at Eko Hotels & Suites, Victoria Island from 5th – 6th March 2020.

Course Director
Adv. Coenraad H. Snyman (World Renowned Contract Expert)
– Founder & CEO – Coen Snyman International
– Former Head Of Contract Training – Hill International
– Former Contract & Commercial Specialist – AngloGold Ashanti
– Former Director, Sr Legal Advisor & Head Contracts–Turner & Townsend (pty) Ltd
– Former Legal Counsel – Siemens VAS
– Partner – Consultants House LLC
– Former Contract Director – Al Hashmi Law
– Former Affiliate Member – FIDIC(International Member Of Consulting Engineers)

Benefits
– Draft agreements to manage risks, minimize claims and avoid disputes.
– Practice how to prepare for negotiation.
– Learn new dispute resolution techniques and master dispute management in context.
– Provides you with an appreciation of the risks of inadequate drafting.
– Understand how to document future plans and contractual outcomes.

Who should attend?
– Head of Legal
– Head, Contract Administration & Management
– Corporate Legal Counsel
– Chief Counsel
– Regional Counsel
– Legal Managers
– Corporate Legal Advisors
– Company Secretaries
– Procurement and Purchasing Managers
– Lawyers
– Arbitrators & Mediators
– Legal Consultants
– Sales and Marketing Managers
– Business Development Managers
– Senior Legal Practitioners


REGISTER NOW

The Lagos Chamber of Commerce International Arbitration Centre (LACIAC) in collaboration with the Innovation & Technology Lawyers Network presents the 2019 Innovation and Tech Law Summit, themed: “Ensuring an Enabling Environment for Digital Innovation”. The 2019 Innovation and Tech Law Summit will bring together key stakeholders within the ecosystem of technology, fintech, regulation and law.

The Summit will speak to issues such as, how digital disruption can be used to transform the economy, and what the critical role of the different stakeholders are.

Speakers
Chidi Nwaogu (Co-Founder, Publiseer)
Chimezie Chuta (Founder, Blockchain Nigeria User Group)
Funmilayo Iyayi (Managing Director, Lagos Chamber of Commerce International Arbitration Centre)
Adeleke Alex-Adedipe (Partner, Duale, Ovia & Alex-Adedipe)
Israel Aye (Co-Founder, MYLAW.NG)
Olanrewaju Gbenga-Martins (Head, Operations and Partnership, DIYlaw)
Lere Fashola (Founder, De’Lex Centre)
Moses Sule (Managing Director, Oradian Nigeria)
Nsikak John (Head, Enterprise Innovation Hub, The Nigerian Stock Exchange)
Salami Abolore (Founder, Riby Finance)
Oluwaseun Alley (Director, Partnerships and Policies, ORide)
Seun Timi-Koleolu (Managing Partner, Pavestones)

Panel sessions include:
– Transforming Disruption into Opportunities: the Critical role of Regulation.
– The Future of Legal Services Delivery; Navigating the Technology Minefield
– Cash and the Digital Age? Legal Implications of Blockchain, AI and Smart Contracts.

In May 2019, African countries created one of the largest free trade areas in the world after the World Trade organization. As we make history, LACIAC takes a deep dive into the dispute resolution framework of the African Continental Free Trade Area (AfCFTA). We consider pertinent questions including whether sufficient protection is afforded individuals and firms who will operate in Africa’s free trade zone. Then we offer plausible solutions for strengthening the dispute resolution regime under the Agreement taking into consideration the peculiarity (assets and liabilities) of the African region.

We begin at the genesis of the AfCFTA Agreement. In her article, Naomi Tarawazi explores the journey to creating Africa’s largest free trade zone and the effect of the agreement on the continent, especially on dispute resolution.

With increased trade and investment comes disputes. We focus on the rights of non-state beneficiaries of the AfCFTA Agreement. We draw connections and lessons from how African countries approach investor-trade dispute in Talkmore Chidede’s article.   

Based on these lessons, Tolu Olatunji makes a case on how IT can foster a more effective dispute-resolution procedure under the AfCFTA Agreement.  

In closing, we bring you news updates on arbitration from around Africa.

We hope this Edition provides some useful tips on navigating the dispute-resolution labyrinth of the AfCFTA Agreement and that you enjoy reading it. If you have any feedback on the content of this Edition, please reach out to us.

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*Written by Talkmore Chidede

Historically, African countries have signed investment treaties, particularly bilateral investment treaties (BITs) to attract foreign direct investment (FDI), as a developmental strategy.  To date, BITs have been executed between African countries (intra-African BITs), with developed countries (traditional/North-South BITs) or with other developing countries outside the continent (South-South BITs). Virtually all BITs contain investment dispute settlement mechanisms including non-judicial means, domestic remedies, diplomatic protection, and investor-state dispute settlement (ISDS) international arbitration. ISDS emerged as the commonly used form of investment dispute resolution by foreign investors. It allows investors to bring proceedings before international ad hoc tribunals against host governments for treaty breaches. BITs commonly cite arbitral institutions such as the International Centre for Settlement of Investment Disputes (ICSID), the United Nations Commission on International Trade Law (UNCITRAL), the Permanent Court of Arbitration (PCA), the London Court of International Arbitration, and the International Chamber of Commerce, among others.

Most traditional BITs give automatic consent to ISDS arbitration. Some (especially modern) BITs grant consent to arbitration on a case-by-case basis. “Under case-by-case consent approach, national laws offer the possibility of ISDS but require additional act of consent by host state government before an ISDS arbitration can go forward”.

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*Written by Tolu Olatunji

Regional trade agreements often encounter some legal uncertainties due to unpredictability, non-compliance, non-transparency, and lack of remedies in instances of breaches.  Private investors and traders are the most likely to be negatively affected and this sometimes makes investors more pensive and doubtful about the markets if it is not certain that they will enjoy adequate protection of the law.

At the 2012 AU Summit, African leaders adopted a Decision (Assembly/AU/Dec.394  (XVIII))  on  the  Establishment of  a  Continental  Free  Trade  Area  (CFTA)  by  the indicative  date  of  2017  and  endorsed  the  Action  Plan  on  Boosting  Intra-Africa  Trade. Seven areas of cooperation were identified, namely: trade policy, trade facilitation, productive capacity, trade-related infrastructure, trade finance, trade information, and factor market integration. In June 2015, at the twenty-fifth (25th) Summit of the African Union held in South Africa, African leaders agreed to launch negotiations on the creation of the CFTA by 2017 through negotiations on the liberalisation of trade in goods and services.

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*Written by Naomi Tarawali

During the African Union’s 12th Extraordinary Summit in early July, the signatory States of the Agreement Establishing the African Continental Free Trade Area (the “Agreement”), which entered into force on May 30, 2019, launched the Agreement’s operational phase.

The Agreement is pioneering as a truly pan-African agreement tackling barriers to intra‑African trade and creating one of the largest common markets in the world. It has been ratified by more than 25 African Union Member States, and a further 27 States have signed the Agreement and are expected to ratify, with Nigeria and Benin most recently signing the Agreement on July 7, 2019. Only one of the African Union Member States, Eritrea, has not signed up to the Agreement.  Although the impact of the Agreement remains to be seen, projections are promising and many are optimistic that it will have a significant effect on boosting intra-African trade, encouraging investment from within and outside of Africa and enhancing overall the competitiveness of African States’ economies in the continent and in the global market.

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The Lagos Chamber of Commerce International Arbitration Centre (LACIAC) in collaboration with Famsville Solicitors, Olawoyin & Olawoyin and Doyin Rhodes Vivour & Co is organizing a 1-day roundtable discussion on Maritime Business & Disputes. 

The two panel discussion will provide first-hand insight and knowledge on the following topics: 

Session 1: African Continental Free Trade Area – growing export market and the potentials for the maritime industry.

Session 2: Integrating the African Continent for the development of Maritime Trade – eliminating trade barriers and dispute resolution management.

Registration has now closed.

We are pleased to announce that LACIAC will be organising a 2-day training on Dispute Management and Alternative Dispute Resolution (ADR) for Micro, Small and Medium Enterprises (MSMEs). This training is supported by the Policy Development Facility Phase II of the UK’s Department for International Development, UK Aid.

Training Details
Date: 24 – 25 September 2019
Venue: Lagos Court of Arbitration Building, 1 Remi Olowude Street, 1 Remi Olowude Street, 2nd Roundabout, Lekki-Epe Expressway, Lekki, Lagos State


MSMEs will be trained on key factors to consider in the negotiation of dispute resolution clauses in contracts as well as cost effective and efficient methods of avoiding, managing and resolving commercial disputes.

Registration is now closed.

We are pleased to invite you to register for a two-day FIDIC Contracts Training Course on The Practical use of the 1999 FIDIC Conditions of Contract for Construction (Red Book) and Plant and Design-Build (Yellow Book) with review of 2017 updates of the Red and Yellow Books. The training is a collaborative effort of LACIAC and the Association For Consulting Engineering in Nigeria (ACEN), a FIDIC member organization. The training will hold on 17th & 18th July, 2019.

This training will be a practical and interactive course that explains and illustrates the use of the Red and Yellow Books. It will address topics such as:

–   Contract documents
–   Responsibilities of main parties
–   Management of projects
–   Tests on completion
–   Financial procedures
–   Suspension and termination
–   Risk, liability and force majeure
–   Claims, disputes and arbitration

The training is designed for contract administrators, project managers, engineers and legal advisers in:

–   Oil and Gas Exploration & Production companies which engage Engineering Procurement and Construction (EPC) contractors in E&P projects;
–   EPC, BOT and other PPP Concession companies
–   Government agencies having ownership or oversight of infrastructure projects
–   Development Banks

It is also useful for professionals involved in construction and infrastructure projects, including architects, quantity surveyors, arbitrators, adjudicators, mediators and construction law firms. The facilitator will be Mr. Husni Madi, a Civil Engineer, Arbitrator & Adjudicator and FIDIC international accredited trainer who also functioned as a friendly reviewer of the FIDIC 2017 suite of contracts.

We are pleased to invite you to register for our two-day Masterclass on Negotiation Skills for Executives.

Date: Thursday, 30 – Friday 31 May, 2019
Venue: Commerce House, No 1, Idowu Taylor Street, Victoria Island, Lagos
Time: 9:00am – 3:00pm each day

The training will focus on the use of negotiation, conflict management and conflict resolution skills set as tools for optimizing business performance. The modules include:

Module 1
–    Introduction to Conflict Management
–    Dispute Resolution Process
–    Basics of Negotiation

Module 2
–    Interdependence
–    Value Creation/Value Claiming
–    The dual concerns model

Module 3
–    Strategy & Tactics of Negotiation
–    Distributive Bargaining
–    Integrative Negotiation
–    5 ps of Negotiation

Module 4
–   Perception Cognition & Emotions

Module 5
–   Communication & Culture in Negotiation

Module 6
–   Leadership & Ethics in Negotiation

Module 7
Managing Impasse
– Power Asymmetry
– Difficult Conversations: 9 Common Mistakes
– Six Foundations of Effective Negotiation
– Six Habits of Merely effective Negotiators

This Masterclass (30 & 31 May 2019) will be delivered by a faculty of experts in the fields of negotiation, conflict management and conflict resolution. The training is a collaborative effort of LACIAC and the College of Negotiation, University of Lagos. The fee for the training is N100,000 (One Hundred Thousand naira). To register, please make your payment to the bank account details below:

Account Name: LACIAC Project Account
Bank Name: Guaranty Trust Bank Plc
Account Number: 0229928180

Please include your payment/transaction number while filling the registration form.

Tax disputes are conflicts or controversies between taxpayers and tax authorities on the interpretation and application of tax laws. Tax disputes usually arise when taxpayers and tax authorities disagree on the administration of tax laws usually with respect to tax assessments and liability. Tax disputes are essentially legal disputes over taxation. “To the extent that tax disputes relate to contentions over rights and liabilities concerning taxation, they … essentially are legal disputes.”

Resolving tax disputes usually starts within the tax authority’s domestic regime before escalating to tribunals or courts. The internal-agency process involves a series of correspondence and meetings between the tax authorities and the taxpayer; it is aimed at reconciling positions. If the dispute cannot be resolved internally, either of the parties may approach the tax tribunal.

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The competence and expertise of African arbitrators in the international arbitration arena is often a subject of debate. Those who argue that African arbitrators possess the requisite skill in international arbitration dispel the lack-of-competence argument as mere perception. They posit that African arbitrators have the talent required to compete on the global arbitration stage. From how to harness this raw talent to developing competence in arbitration and strategically compete internationally, Professor Mohamed Abdel takes us through his experience practicing as an international arbitrator and highlights lessons that African practitioners to learn from.

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In Union of India v Khaitan Holdings, a Delhi High Court refused to stay international arbitration proceedings initiated against the Republic of India in connection with a Bilateral Investment Treaty (BIT) with Mauritius. The court decided that the question of jurisdiction must be decided by the arbitration tribunal itself.

This decision points to how a well-informed judiciary can uplift and maintain the impetus of investment-arbitration procedures. National courts continue to play an important role in investment arbitration but their perception as the “’weak link’ in the chain of arbitral practice and procedure” negatively impacts the general development and advancement of international arbitration specifically in Africa. Interim measures require urgent actions from the court and the decision in this case is in consonance with international standards.

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We are pleased to invite you to attend a panel discussion and workshop on Awareness & Education for Businesses on Alternative Dispute Resolution (ADR).

Date: Friday, 17th May 2019
Venue: The Commerce House, No: 1, Idowu Taylor Street, Victoria Island, Lagos.
Time: 10:00am – 1:00pm

*Breakout sessions starts at 1:00pm prompt.

Workshop Sessions
– Business Scaling and Expansion through franchising
– Access to low interest funding for business growth
– Dispute management and resolution for franchising business

Workshop Speakers
Chiagozie Nwizu (Managing Director, FBDS)
Okwuchi Ugorji (Chief Executive Officer, Next Empowerment Foundation)
Funmi Iyayi (Chief Executive Officer, LACIAC)

Click here to register.

A Stakeholders’ Roundtable on Sports Business and Dispute Resolution will be held on Tuesday, 19th March 2019. This roundtable is a collaborative effort between Lagos Chamber of Commerce International Arbitration Centre and the following organisations: the Lagos State Sports Commission, Akinwunmi and Busari, Andi Daze Legal, SuperSport, 7Up Bottling Company Plc, Aiteo and Connect Marketing.

Event Details
Modern sports industry is defined by a combination of commercial relationships designed to ensure sporting success as well as secure investments of interested stakeholders. These pivotal contractual relationships provide the commercial framework of the industry but are sometimes the subject of dispute. The sports industry stakeholders’ roundtable discussion is designed to make industry-specific alternative dispute resolution platforms directly accessible to sports bodies and active stakeholders towards strengthening legal frameworks and facilitating commercial growth in the sports industry.

Venue: The Lagos Chamber of Commerce and Industry, Commerce House, 1, Idowu Taylor Street, Victoria Island, Lagos
Time: 10:00am

Highlights of the discussion will include:
• Enlightening stakeholders on key sporting principles
• In-dept review of various international sports dispute resolution structures
• Review of global best practice for resolving disputes arising from business transactions
related to sponsorship, merchandising, broadcasting and media deals
• Direction on the future of sports industry dispute resolution in Nigeria
• Proposals for internal legal framework for sports associations
• Provision of sample dispute resolution clauses for contracts and bye-laws; and
• Solicit firm commitment from stakeholders towards implementation of the clauses

Moderators
Fred Edoreh – President, Sports Writers Association of Nigeria, Lagos State
Ololade Adewuyi – Chief Strategist, CampsBay Sport Media
Andi Daze – Managing Partner, Andi Daze Legal
Beverley Agbakoba-Onyejianya – Head of Sports Practice, Olisa Agbakoba Legal

Speakers
Seyi Akinwunmi – Vice President, Nigeria Football Federation
Chijioke Okoli, SAN – Founding Partner and Chief Counsel, Delphi Law Advisory
Uthman Mustapha, SAN – President, CAF Board of Appeal
Dr. Kweku Tandoh – Chairman, Lagos State Sports Commission
Ibrahim Shehu Gasau – President, The Athletics Federation of Nigeria
Shehu Dikko – Chairman, League Management Company
Enitan Oshodi – Chairman, International Table Tennis Federation (Nominations Committee)
Felix Awogu – General Manager, SuperSport West Africa
Tunji Brown – Owu Sportswear
Nkechi Obi – Chairperson, Sports Industry Thematic Group of the Nigerian Economic Summit Group
Tijani Babangida – President, National Association of Nigeria Professional Footballers
Sheriff Olaniyan – Chief Executive Officer, Surebet247

Registration has now closed

The first Regional Training Workshop on Dispute Management in Africa Infrastructure Projects was held in Lagos on Friday, 18th January 2019. The workshop was a collaborative effort of the Lagos Chamber of Commerce International Arbitration Centre (LACIAC) and the Association for Consulting Engineering in Nigeria (ACEN), as well as the international law firm Freshfields Bruckhaus Deringer and the Nigerian firms, Aluko & Oyebode, Funmi Roberts & Co and Babalakin & Co. 

 

Written by ‘Yemi Akisanya (CEDR Accredited Mediator, MSCMA (UK), and Principal, Adeyemi-Akisanya

More than ever before, modern companies are striving to achieve and sustain optimal economic prosperity, strongly balanced with excellent public relations, social responsibility, and environmental performance.  These concerns form the core of a new trend in the practice of corporate governance, which recognizes the expediency of effective dispute resolution and conflict management.  And so, these concerns have become major drivers of the policies of these companies.  Part of this trend is seeing the emergence of Mediation as a key method of resolving disputes and conflicts.

Before recent times, Litigation was the main method of deciding and settling disputes when “amicable discussions” had failed, as they often do.  Through Litigation, aggrieved parties obtain redress for their hurt or loss and the justice system punishes perpetrators of culpable acts; all, thanks to the power of the court to compel and enforce.  This satisfies a human need to achieve vindication, often by all means.  Unfortunately, it often destroys relationships, and permanently, too. In Litigation, to quote John P. Bowman, “the hands that had been clasped with each other in a warm shake, quickly don boxing gloves”.  In addition, the openness of the court forum, especially in an age that cherishes freedom of information means much laundering in public, undesirably, of dirty linen. Moreover, parties themselves have minimal input in the litigation process and its outcome.

This is causing the historical bias for litigation to give way gradually under the weight of frustration at mounting costs, attendant disruption of business, and destruction of relationships, not to talk of being at the mercy of the lawyers and courts.  Parties, increasingly, are electing Alternative Dispute Resolution methods like Arbitration, Mediation, and Early Neutral Evaluation, with Mediation rapidly becoming the chief choice among these consensual processes.  Mediation’s major sell being the savings in time, costs, as well as the preservation of goodwill, relations, and reputation.  As former US Chief Justice Warren Burger (as he then was) said in a 1977 Judges Journal, “People with problems, like people with pains, want relief, and they want it as quickly and inexpensively, as possible”.  And if this writer may add, with as much privacy and confidentiality as the circumstances would permit; coupled with the fact that Mediation largely removes fault from the equation, thus enabling Parties to agree on a solution to their dispute that both can live with.  After all, at the end of the day, that is what really matters.

Download full PDF Document

Written by Kome Oruade

An attractive characteristic of arbitration as an alternative dispute resolution mechanism is party autonomy; the freedom of having disputes resolved in a manner determined by the parties. Parties, especially those in a commercial contract, often desire customized dispute resolution procedures that are not available in the court system. For example, a contract might be on a specialized subject matter which the parties prefer to have an expert adjudicate on.  The court system does not assure that a dispute will be assigned to a judge specialized on the subject matter. In another instance, parties may desire to have their dispute resolved within a certain timeframe necessitated by the nature of the contract. Again, there is no definite timeframe within which a court will resolve a dispute.

Parties, whether companies or individuals, doing business in nascent markets, want their disputes resolved justly and speedily. Hence, Dispute Resolution is one of the criteria measured by the World Bank in determining the Ease of Doing Business in a State. It is usual for commercial parties to include arbitration clauses in their contracts or submit to arbitration when disputes arise. In drafting arbitration clauses or submission agreements, any meticulous party will be careful about the choice of the seat of arbitration.

In this regard, parties prefer Seats that are pro-arbitration. The judicial attitude of the courts within a Seat gives an indication of whether the Seat is arbitration friendly. This law of the Seat is important as it places the arbitration within the domestic legal framework of the State’s jurisdiction. In Africa, some jurisdictions are considered more pro-arbitration than others. Leading among these are Mauritius, Rwanda, South Africa, Egypt, and Kenya. This article provides an indication of Nigeria’s position in the list of most-friendly arbitration Seats in Africa.

Download full PDF Document

Written by Anita Omonuwa Ogbalu, MCIArB

Nigeria is gradually growing into a hub for commercial arbitration in the West African region.  The evolving preference for arbitration over the country’s traditional court system is because the latter tends to be protracted, with frustrating adjournments. To put this in perspective, it is typical for a civil claim to last an average of 8 – 14 years in proceedings from a trial court to the Supreme Court. An example of this protraction was observed in Amadi v NNPC where an interlocutory appeal bothering on jurisdiction lasted for 13 years.

In view of the above, parties are beginning to appreciate arbitration as a viable alternative means of resolving disputes, with its antecedent benefits.  Hence, it is crucial to examine whether some of the perceived benefits of arbitration, such as the privacy and confidentiality of the process, are optimally available in the Nigerian arbitration space. This author holds the view that whilst the privacy of the proceedings is honoured as a direct consequence of the arbitration agreement, the perception that a confidentiality obligation exists by default is sadly inaccurate.

This article discusses the concept of confidentiality by taking a birds-eye view of various jurisdictions but with a primary focus on Nigeria.  Further, this article provides tips parties can adopt when drafting arbitration agreements where Nigeria is the arbitral seat in order to guarantee the confidentiality of the proceedings.

Download full PDF document

 

 

The first Regional Training Workshop on Dispute Management in Africa Infrastructure Projects will be held in Lagos on 18 January 2019. The workshop is a collaborative effort of the Lagos Chamber of Commerce International Arbitration Centre (LACIAC) and the Association for Consulting Engineering in Nigeria (ACEN), as well as the international law firm Freshfields Bruckhaus Deringer and the Nigerian firms, Aluko & Oyebode, Funmi Roberts & Co and Babalakin & Co. 

This training will be delivered by a faculty of experts in the fields of construction, project management, dispute management and dispute resolution. The experts draw on several years of experience working and advising on contract administration, project management, claims management and dispute resolution across different sectors, including oil and gas installations, road, rail, ports and power projects. Participants will benefit from cutting edge insights on:

–    new methods and processes for avoiding disputes, managing claims and resolving disputes
– dispute avoidance and adjudication under the 2017 edition of the FIDIC contracts

VIEW WORKSHOP PROGRAMME HERE.

REGISTRATION IS NOW CLOSED

Lagos Chamber of Commerce International Arbitration Centre (LACIAC) in conjunction with G. Elias & Co. is organising an entertainment industry roundtable which will be held on Tuesday, 13 November 2018. The theme of the roundtable is “Entertainment Law Contracts and the Protection of Intellectual Property Rights”.

The discussion will provide invaluable insights into the following key areas:

– Overview of entertainment law contracts, including royalty and licensing agreements;
– Key areas of dispute resolution and settlement mechanism;
– International best practices in the protection of intellectual property rights – WIPO perspective;
– Enforcement of piracy laws and intellectual property statutes in cases of breaches and infringement – challenges and proposal for reform; and
– Regulatory perspective into enforcement of intellectual property rights.

Overview of entertainment law contracts, including royalty and licensing agreements:

– Current structure of recording contracts (and music publishing contracts) in Nigeria and whether the said contractual structures contribute to the common occurrence of breach/frustration of agreements in the music industry.
– How music publishing fits into the music business ecosystem and who (e.g. record labels or value-added service (VAS) providers or Telcos/digital retailers) is liable to pay the royalties due to composer, songwriters, music publishers.
– How new VAS regulations from Nigerian Communications Commission have affected/will affect revenue shares for sales of music via ringtones/caller ring back tones (CRBTs)/downloads via VAS.

Panelists
Obi Ezeilo – Director, Nigerian Copyright Commission
Shola Adeyemi – Director, Legal, Airtel Nigeria
Jude “MI” Abaga – Recording Artist
Yetunde Akinloye – Nigerian Communications Commission
Efe Omorogbe – Hypetek Digital Record Label
Olumide Mustapha – President, Music Publishers Association of Nigeria
Onyinyechukwu Ujomu – iROKO Music
Andrzej Gadkowski – World Intellectual Property Organisation (WIPO), Arbitration & Mediation Centre

Venue
Lagos Chamber of Commerce and Industry (LCCI)
Commerce House
1 Idowu Taylor Street, Victoria Island
Lagos State

Time
3:00pm – 5:00pm

Register here

Written by Kome Oruade

A successful arbitration always requires the arbitral tribunal’s adroit handling of the proceedings. This is more so because tribunal’s composition often determines the success or failure of the proceedings.  Hence, J.F. Lalive opines that “[t]he choice of the persons who compose the arbitral tribunal is vital and often the most decisive step to an arbitration. It has rightly been said that arbitration is only as good as the arbitrator.”[1]

Leading authors in arbitration, Redfern and Hunter, agree with this position. The authors hold the view that after the decision to refer a dispute to arbitration has been made, the choice of the arbitrator becomes critical. The life of the arbitration depends on the arbitrators. “It is above all, the quality of the arbitral tribunal that makes or breaks the arbitration…”[2]

Parties that opt for arbitration often perceive it as better suited for resolving business disputes when compared to litigation. Arbitration is more efficient; the decision is binding on the parties, (arbitral awards can only be challenged on limited grounds); and parties have a right to choose their arbitrators. It is this last quality, the parties’ ability to choose the arbitrators, that “makes or breaks the arbitration”[3]. “Get it wrong and the arbitration can be beset with problems”[4]. Yet, the parties have little or no guidance on this important subject.

Often, the arbitration agreement authorizes parties to appoint their arbitrators. In this case, well-informed parties have the advantage of cherry-picking arbitrators with experience and expertise necessary for the dispute in question. But where any party fails to make the required appointment, the mandate shifts to an appointing authority (if the parties have designated one) or the court.  In this instance, the parties lose the right of choosing a ‘judge’ with the appropriate characteristics for a given dispute.  The court-chosen arbitrator may or may not be right for the arbitration. (This is often due to lack of information to aid the court in appointing a candidate.) Thus where possible, parties should assist the court in reaching a decision by taking advantage of the list-procedure under Articles 6 and 7 of the First Schedule to the Arbitration and Conciliation Act, 1998.

Download full PDF document.

[1] J.F. Lalive, ‘Melanges en l’honneur de Nicholas Valticos: Droit et Justice’ (1989), quoted in Lord David Hacking, ‘Arbitration only as good as its Arbitrators’, International Arbitration and International Commercial Law: Synergy, Convergence and Evolution, 2011, 223, 224, Link, (accessed 8 April 2018) (Italics mine).

[2] Nigel Blackaby and Constantine Partasides with Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration, 5th ed., Oxford University Press, 246, (Italics mine).

[3] Redfern and Hunter, Ibid.

[4] Lucy Greenwood, Global Arbitration Review, quoted in Lord David Hacking, ‘Arbitration only as good as its Arbitrators’, International Arbitration and International Commercial Law: Synergy, Convergence and Evolution, 2011, 223, 224, Link, (accessed 8 April 2018).

Introduction

The backlog of cases in the Nigerian legal system has increased the clamour for alternative dispute resolution (ADR) specifically, court-annexed mediation. Several high courts initiates, notably the Abuja, Kano, and Lagos Multi-Door Court Houses and the Lagos State Citizens Mediation Centre, now list mediation as a means of dispute resolution. Court-annexed mediation allows parties with matters pending in court to have their dispute settled by the Court’s mediation Centre. Sequel to the Court of Appeal Rules, 2016, the Court of Appeal Mediation Rules, 2018, gives a framework for conducting settlement by mediation in the Court of Appeal. This article reviews the effectiveness of the Rules vis-à-vis its objective: to enhance the administration of justice.

The Purpose of the Court of Appeal Mediation Centre

Rule 1 establishes the Court of Appeal Mediation Centre (CAMC) to provide speedy resolution of disputes through mediation and other alternative dispute resolution procedures.

All appeals to the Court will be screened to determine their suitability for mediation and resolved at the Centre if found appropriate. This screening is done by the court. In defining Appeals that are “appropriate” for mediation, Rule 4 lists all civil appeals and matters relating to breach of contract, liquidated money demand, matrimonial causes, child custody and parental actions, personal actions in tort, chieftaincy, and inheritance. In addition to this list, parties can on mutual agreement opt to have their disputes resolved at the Mediation Centre. In the latter sense, it appears there are no restrictions as the type of matters that may be referred to mediation under the Rules. Save the above description, the Rules provide no further guidelines regarding what constitutes an “appropriate” case for mediation.

Download full PDF document.

The Arbitration and Conciliation Act (Repeal and Re-enactment) Bill (The Bill) has successfully passed through the Senate and awaits the concurrence of the House of Representatives and the assent of the Presidential to become law. The purpose of this reform is to modernize Nigeria’s arbitration law and tackle problems that have been a disincentive to arbitrating in Nigeria.

Under the present framework, guerrilla tactics have usually been employed in arbitral proceedings, often in the form of incessant “interlocutory appeals” to court complaining of arbitrator “misconduct” and often accompanied by injunctions to restrain arbitral proceedings. The Bill has removed the concept of “misconduct” and aligned the grounds on which awards may be challenged with the more limited “due process” and “jurisdictional” grounds contained in the UNCITRAL Model Law and the New Your Convention.

When an arbitration proceeding eventually comes to a conclusion, enforcement can be quite problematic if the losing party decides to challenge the arbitral award. Under the present framework, the scope for courts to review arbitral awards is very wide and is, in effect, almost comparable to the full merits review that applies to first instance court decisions.   The Bill recently passed by the Nigerian Senate has taken a bold step to address this issue by considerably reducing the wide scope for judicial review that currently exists and, in its place, providing for an appellate level arbitral process that will review the award of first instance arbitral tribunals.

The creation of the award review tribunal is an innovative step which will go a long way in ensuring the finality and preservation of arbitral awards. Parties are given the option to refer their awards to the tribunal for review instead of going to court in the first instance to have an award set aside. The award review tribunal is expected to conclude the review within three months and either uphold or set aside the award in whole or in part.  An award that has been upheld by the award review tribunal can only be set aside by a court on ground of arbitrability and/or public policy.

Also, the Bill provides for the appointment of an emergency arbitrator, again limiting the involvement of the court in situations where a party requires urgent relief before the constitution of the arbitral tribunal or appointment of the sole arbitrator. The option to appoint an emergency arbitrator as provided in the Bill gives parties the option to seek interim relief from the arbitrator instead of recourse to court.

Another innovative provision in the Bill is the expansion of the definition of ‘Costs of Arbitration’ to now include   the arbitral institution’s cost and the cost of third party funding. While the effect of the inclusion of the cost of the arbitral institution in calculating the cost of the arbitration will probably not be significant because most institutions already have their cost included in their Rules which the tribunal and the parties are obligated to comply with, the opposite is the case for the provision relating to third party funding.

Nigeria currently does not have legislation that expressly prohibits third party funding. However, the common law doctrine of champerty and maintenance apply in Nigeria as part of received English Law. This raises significant doubt about the enforceability of third-party funding agreements. The express reference to the use of third party funding signals legislative acceptance of this mechanism which most business managers will find a useful strategy for keeping litigation costs off their balance sheet.

The Nigerian arbitration community eagerly awaits the enactment of what promises to be a major development in the evolution of commercial disputes resolution in Nigeria.

Funke Adekoya Appointed Arbitrator at ICSID

Funke Adekoya, SAN has been appointed into the Panel of Arbitrators of the International Centre for Settlement of Investment Disputes (ICSID)[1]. ICSID is a part of the World Bank Group and a foremost arbitral institution for the resolution of foreign investment disputes. Mrs Adekoya’s 6-year appointment commenced 16th September 2017. In January 2018, She was appointed arbitrator in her first ICSID arbitration; the Agro-EcoEnergy-Tanzania dispute.

Doyin Rhodes-Vivour Appointed to the ICC Court

Mrs. Adedoyin Rhodes-Vivour has been appointed as a member of the ICC’s International Court of Arbitration[2]. The appointment took effect on July 1, 2018 and will run over the course of its 2018-2021 term. She is the Managing Partner of Doyin Rhodes Vivour & Co and the vice chairperson of LACIAC.

ALSF Launches the African Arbitration Association (AfAA)

The African Legal Support Facility (ALSF) on the 29th of June 2018 hosted a conference on Arbitration in Abidjan, Côte d’Ivoire where the African Arbitration Association (AfAA) was launched[3]. The AfAA, with its headquarters in Rwanda, was founded for the purpose of promoting the development of international arbitration and other forms of international dispute resolution on the African continent.

Chief Bayo Ojo SAN of Bayo Ojo & Co has been appointed as the President. Other members of the Board are Mrs. Adedoyin Rhodes-Vivour, Dr Emilia Onyema and Dr Rukia Baruti who is the founding secretary general of the Association. .

[1]https://www.aelex.com/mrs-funke-adekoya-san-appointed-into-icsid/, (accessed 12 April 2018).

[2]https://iccwbo.org/dispute-resolution-services/icc-international-court-arbitration/court-members/#1478195489936-1a1acd15-7f6d

[3]https://africanarbitrationassociation.wildapricot.org/page-18078

 

The Lagos Chamber of Commerce International Arbitration Centre (LACIAC) is pleased to announce its first Mediation Week, held in conjunction with the law firms of Banwo & Ighodalo and The New Practice.

Please see details below:

Med Week_1

The Lagos Chamber of Commerce International Arbitration Centre (LACIAC) and the Association of International Petroleum Negotiators (AIPN)’s African Chapter held a two-part dispute resolution workshop on Monday, 2nd of July, at the Lagos Chamber of Commerce and Industry (LCCI) House, Victoria Island. The speakers included Mr Tim Martin, the Managing Director of Northumberland Chambers, Alberta, AIPN past president and Co-chair of AIPN Model Dispute Resolution Contract Committee; Mrs Funmi Roberts, Principal Partner at Funmi Roberts and Co; Dr. Tunde Ajibade SAN, Managing Partner of SPA Ajibade & Co and Mr Uwa Etigwe SAN, Partner at Streamsowers & Köhn.

The discussion evolved around the management of international business disputes in the oil and gas sector with an overview of the development of the updated and revised AIPN Model Dispute Resolution Agreement and its accompanying Guidance Notes. Emphasis was also laid on the challenges experienced by arbitration practitioners in the Nigerian context.

Here are pictures from the event:

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The Lagos Chamber of Commerce International Arbitration Centre (LACIAC) brings you the first edition of its Newsletter, Dispute Resolution Update. In this edition, we review events in Nigeria since the last quarter of 2016 which will impact commercial and investment dispute resolution, including:

– Efforts to reform Nigeria’s arbitration legislation;
– The Nigeria-Morocco Bilateral Investment Treaty, and
– The Petroleum Industry and Governance Bill.

Download the full newsletter here.

 

 

The Lagos Chamber of Commerce International Arbitration Centre (LACIAC) and the Association of International Petroleum Negotiators (AIPN)’s African Chapter will host a two-part dispute resolution workshop on Monday, 2 July, at the Lagos Chamber of Commerce and Industry House, Victoria Island, Lagos from 4pm – 7pm. 

This workshop will provide a detailed review of what counsel and executives need to know to anticipate and manage international business disputes with a focus on the international oil and gas business. Please see details of the workshop below:

Part 1: “The New AIPN Model Dispute Resolution Agreement”
– Mr Tim Martin
Managing Director, Northumberland Chambers, Alberta, AIPN past president, Co-chair of AIPN Model Dispute Resolution Contract Committee http://timmartin.ca

This presentation will provide an overview of the development of the updated and revised AIPN Model Dispute Resolution Agreement and its accompanying Guidance Notes. Tim Martin will discuss the key components of what parties need to draft into their dispute resolution clauses and how the new AIPN Model DR Agreement can be used to easily, effectively and quickly meet those needs.

Part 2: “Issues and Challenges in Enforcing Arbitral Awards in General”
– Mrs Funmi Roberts
Funmi Roberts and Co., Moderator http://www.funmirobertsandco.com/funmi-robert-profile/
– Dr. Tunde Ajibade SAN
SPA Ajibade & Co http://www.spaajibade.com/team-dr-ajibade.html
– Mr Uwa Etigwe SAN
Streamsowers & Kohn http://www.sskohn.com/our-team/etigwe-uwa-san/
– Mr Tim Martin
Managing Director, Northumberland Chambers, Alberta, AIPN past president, Co-chair of AIPN Model Dispute Resolution Contract Committee http://timmartin.ca

This roundtable discussion will focus on some of the challenges experienced by arbitration practitioners in the Nigerian context. The conversation is intended to highlight such issues that hinder enforcement of awards such as public policy, lack of familiarity with knowledge of international arbitration, the attitude of local courts, exploiting the gaps in local arbitration statutes, jurisdictional challenges, social-political intervention, etc.

To RSVP and for other enquiries, please contact Toyosi Oguntuase on 08086648945 or by email toyosi.oguntuase@laciac.org

Here is an overview of the Roundtable Discussion held by the Lagos Chamber Of Commerce International Arbitration Centre (LACIAC) in conjunction with Perchstone & Graeys and Yusuf Ali & Co on Channels TV.

WhatsApp Image 2018-05-28 at 1.57.08 PM

The Lagos Chamber of Commerce International Arbitration Centre (LACIAC) in conjunction with Yusuf Ali & Co and Perchstone & Graeys held a roundtable at the Lagos Chamber of Commerce and Industry (LCCI) to discuss the Challenges of Financing Infrastructure.

Investors harped on the need for Nigeria to remove bottlenecks to capital access while urging reforms that would ensure that business owners get justice within the shortest possible time.

Read the full article on Business Day: http://www.businessdayonline.com/laciac-proffers-solutions-business-financing-contract-disputes/

Mr Babatunde Fagbohunlu SAN, the Chairman of the Board of LACIAC, discusses Alternative Dispute Resolution on Channels TV.

The Arbitration and Conciliation Act (Repeal and Re-enactment) Bill (The Bill) has successfully passed through the Senate and awaits the concurrence of the House of Representatives and the assent of the Presidential to become law. The purpose of this reform is to modernize Nigeria’s arbitration law and tackle problems that have been a disincentive to arbitrating in Nigeria.

Under the present framework, guerrilla tactics have usually been employed in arbitral proceedings, often in the form of incessant “interlocutory appeals” to court complaining of arbitrator “misconduct” and often accompanied by injunctions to restrain arbitral proceedings. The Bill has removed the concept of “misconduct” and aligned the grounds on which awards may be challenged with the more limited “due process” and “jurisdictional” grounds contained in the UNCITRAL Model Law and the New Your Convention.

When an arbitration proceeding eventually comes to a conclusion, enforcement can be quite problematic if the losing party decides to challenge the arbitral award. Under the present framework, the scope for courts to review arbitral awards is very wide and is, in effect, almost comparable to the full merits review that applies to first instance court decisions. The Bill recently passed by the Nigerian Senate has taken a bold step to address this issue by considerably reducing the wide scope for judicial review that currently exists and, in its place, providing for an appellate level arbitral process that will review the award of first instance arbitral tribunals.

The creation of the award review tribunal is an innovative step which will go a long way in ensuring the finality and preservation of arbitral awards. Parties are given the option to refer their awards to the tribunal for review instead of going to court in the first instance to have an award set aside. The award review tribunal is expected to conclude the review within three months and either uphold or set aside the award in whole or in part.  An award that has been upheld by the award review tribunal can only be set aside by a court on ground of arbitrability and/or public policy.

Also, the Bill provides for the appointment of an emergency arbitrator, again limiting the involvement of the court in situations where a party requires urgent relief before the constitution of the arbitral tribunal or appointment of the sole arbitrator. The option to appoint an emergency arbitrator as provided in the Bill gives parties the option to seek interim relief from the arbitrator instead of recourse to court.

Another innovative provision in the Bill is the expansion of the definition of ‘Costs of Arbitration’ to now include the arbitral institution’s cost and the cost of third party funding. While the effect of the inclusion of the cost of the arbitral institution in calculating the cost of the arbitration will probably not be significant  because most institutions already have their cost included in their Rules which the tribunal and the parties are obligated to comply with, the opposite is the case for the provision relating to third party funding.

Nigeria currently does not have legislation that expressly prohibits third party funding. However the common law doctrine of champerty and maintenance apply in Nigeria as part of received English Law. This raises significant doubt about the enforceability of third-party funding agreements. The express reference to the use of third party funding signals legislative acceptance of this mechanism which most business managers will find a useful strategy for keeping litigation costs off their balance sheet.

The Nigerian arbitration community eagerly awaits the enactment of what promises to be a major development in the evolution of commercial disputes resolution in Nigeria.

The Senate of the National Assembly on Thursday, 1 February, 2018, passed the Bill for an Act to repeal the Arbitration and Conciliation Act 1988 and enact a new Arbitration and Conciliation Act.

The Bill is expected to pass through the House of Representatives and obtain presidential approval before it becomes law.

The proposed legislation will introduce significant reform in the practice of arbitration in Nigeria, and make Nigeria an attractive center for international and domestic arbitrations. The Bill contains innovative provisions on:

  1. Jurisdiction and composition of the arbitral tribunal
  2. Costs
  3. Interim measures of protection
  4. Recourse against awards
  5. Conciliation

More information on the new Bill will follow.

 

The Nigerian Senate has finally passed the Petroleum Industry Governance Bill after 17 years of consideration. The bill which seeks to reform the oil and gas industry will unbundle the Nigerian National Petroleum Corporation (NNPC), the Department of Petroleum Resources (DPR), the Petroleum Products Pricing and Regulatory Agency (PPPRA) as well as other agencies, while creating two new independent entities namely the National Petroleum Assets Management Commission (NPAMC) and the National Petroleum Company (NPC).

Under this new structure, the NPAMC (now referred to as “the management company”) will have the responsibility for the management of assets held by NNPC under the Production Sharing Contract and the Back-in Rights Provisions. The NPC would operate as a profit-driven commercial entity, which will be run like a private company and will be responsible for management of all other assets.

The unbundling of NNPC may cause some concern to foreign partners and oil companies and questions may arise as to the legal consequence of previous agreements. The new Bill provides for the transfer of assets and liability, which would be “fully effective and enforceable against or in favour of the Management Company as if, instead of NNPC, the Management Company had been named herein”.

The lawmakers believe that the passage of the bill will open up the sector to better business opportunities, while ensuring transparency, accountability of revenue derived from oil and will help steer Nigeria out of recession.

On the 3rd of December 2016, Nigeria and the Kingdom of Morocco signed a Bilateral Investment Treaty (BIT) with the aim to improve bilateral trade relations and strengthen their business relationship.

The Nigeria/Morocco BIT is an ambitious update on traditional treaties and a significant attempt by two developing countries to move toward a more balanced regime of intra-African investor protection. Some of the significant provisions are:

Standards of treatment

This provision ensures substantive protection of investors by the host state usually contained in traditional treaties. It further states that investors are not only entitled to the minimum standard of treatment, but also to fair and equitable treatment, which includes full protection and security.

Sustainability

Sustainable development is a key theme of the treaty. The promotion of sustainable development is featured in the preamble as well as in other provisions. Sustainability can be found in the definition of “investment” under Article 1(3), which requires investors to contribute to sustainable development coupled with Article 24(1), which states that investors “should strive to make the maximum feasible contributions to the sustainable development of the host state and local community”.

Investors’ Obligations to the Host State

Another term of the treaty is the reciprocity of the relationship between the Investor and the Host State. Unlike, the traditional treaties, the Nigeria/Morocco BIT imposes a number of obligations on the investors. According to Article 14, investors must satisfy environmental and social impact assessment requirements based on standards agreed by the Joint Committee. Investors must also comply with international labour standards, uphold human rights and operate through high levels of socially responsible practices. Article 20 encourages investment, but not at the expense of environmental and social well-being of the host state; an investor in breach of this provision will be subject to civil liability in their home state, in the event that acts or decisions lead to significant damage or loss of life in the host state.

Dispute prevention                

In most traditional treaty agreements, there is provision for the amicable settlement of disputes between an Investor and the Host State. Article 26(1) of the Nigeria/Morocco BIT takes things a step further by requiring that prior to the commencement of treaty based arbitration, the dispute must be assessed through consultations and negotiations by the Joint Committee, after which the Committee has 90 days to submit relevant information about the presented case. This requirement applies to both Investor-State and State parties disputes.

As stated earlier, the Nigeria/Morocco BIT is a marked departure from the traditional treaties. Morocco has signed a number of treaties in recent years, most recently with Mali and Burkina Faso. Neither of these examples include the innovations found in the Nigeria/Morocco BIT. Nigeria’s most recent bi-lateral investment treaty (before the Nigeria/Morocco BIT) was with China and was signed in 2001 and came into force in 2010.

Nigeria’s Arbitration Act[1], was enacted in 1988 and is now being reviewed to bring it up to date with international best practices in arbitration and alternative dispute resolution. Since it was enacted 29 years ago, there have been several important legal developments in arbitration.

This year, the Nigerian Senate is considering a Bill to amend the Arbitration Act.  Five important changes are likely to occur if the Bill is passed into law. In no particular order, some of these changes are as follows:

1. How many arbitrators make a Tribunal?

Section 6 of the current Arbitration Act provides for a default composition of an arbitral tribunal. By this provision, where the parties fail to agree, a Tribunal will be composed of three arbitrators. In the proposed Bill, Section 6 provides that the default composition of a Tribunal will be a sole arbitrator. This change will potentially reduce costs.

2. What to do in an emergency

Sections 16 – 18 of the proposed Bill create a procedure for the appointment and challenge of an emergency arbitrator, in instances where the parties require interim relief prior to the constitution of the Tribunal. Section 19 of the proposed Bill also requires that, where an application for interim measures is made to the Court, it must be determined in 15 days. Section 28 of the proposed Bill provides that interim measures are binding and enforceable by making an application to a competent Court.

These provisions address the need for urgent interim measures in arbitration, typically required at a time when an arbitral tribunal has not been established. This had previously depended almost entirely on the intervention of the courts.

These provisions address the need for urgent interim measures in arbitration, typically required at a time when an arbitral tribunal has not been established. This had previously depended almost entirely on the intervention of the courts.

3. Statutes of Limitation

Section 34(4) of the proposed Bill provides that in computing the time within which an application to court for enforcement of an award may be made, the time between the commencement of arbitration and the delivery of the award is to be excluded.

The present position of the law is that, unless a Scott v Avery clause exists, time to enforce an arbitral award starts to run from the date the contractual cause of action itself arose, so that there is a risk that if the arbitral process is unduly protracted, the right to enforce the award may be statute barred by the time the arbitration is concluded and an award is delivered. The proposed new provision means that the statutory time-limit in relation to an action to enforce an arbitral award stops to run from the moment arbitration is commenced.

Until this proposed change is enacted into law, claimants in danger of an approaching limitation statute may need to file a “protective action” in court to preserve their rights to seek relief through the judicial system.

4. Setting aside an Award

Section 55 of the proposed Bill expressly excludes misconduct as a ground for setting aside an arbitral award. This is a positive change because under the current legislation, the concept of misconduct has been defined so broadly as to permit virtually full merit reviews of arbitral awards. The draft Bill employs various devices, including the introduction of an Award Review Tribunal to narrow the scope and expedite the timeframe for award reviews.

 

[1] Cited as the Arbitration and Conciliation Act, Cap A18, Laws of the Federation of Nigeria, 2004

Nigeria’s National Judicial Institute has issued a strong statement of judicial policy in support of arbitration. In a letter dated 26 May 2017 and written to all Heads of Court, the Chief Justice of the Federal Republic of Nigeria, the Hon. Justice W.S.N. Onnoghen, GCON, FNJI, who also chairs the Board of Governors of the National Judicial Institute, deprecated the practice where courts indulge parties who commence litigation in disputes arising from contracts with arbitration clauses. The Chief Justice emphasized the importance of arbitration in encouraging foreign investments, and counselled that arbitration “needs the support and encouragement of the judiciary”.

Although the Nigerian judiciary has historically been supportive of arbitration agreements, a number of decisions in recent times have drawn criticism. Some judges have refused to stay court proceedings that one party initiated in breach of an arbitration agreement, citing reasons such as: (i) the failure of the other party to commence arbitration or (ii) the interests of third parties who were not privy to the arbitration agreement.

Click to download full PDF

THE Lagos Court of Arbitration (LCA) has signed a Memorandum of Understanding (MoU) with the Lagos Chamber of Commerce International Arbitration Centre (LACIAC).

LACIAC signs Memorandum of Understanding with LCAA statement by the President of the LCA, Olasupo Shasore (SAN) said, “It is an organic partnership as both organisations are committed to improving the business climate of Lagos. The goal of “The Arbitration in Lagos Project” is to promote Lagos as the centre of choice for the resolution of Africa related arbitrations, and to advance the infrastructure of alternative dispute resolution by concentrating the expertise and resource pool that we have readily available in the region.”

Tunde Fagbohunlu (SAN), Chairman of the Arbitration Committee, LACIAC spoke keenly about the “3 E” vision; “International and domestic arbitrations held in Lagos will be conducted efficiently, and with equitable procedures and outcomes.

“In the pipeline is engagement with the legislature and judiciary to ensure far reaching constitutional and legislative reform, and also to support efficient and expeditious enforcement of arbitral awards.

“We are very excited about the partnership, and are looking forward to the first “Arbitration in Lagos” event scheduled for April 16, 17, 2015 which will focus on showcasing the best of Lagos as an international destination for ADR, networking and relationship building. The event will be timed with the opening of the LCA’s newly minted custom-built ADR headquarters in Lekki.”

Though formed as a public sector initiative through the Lagos Court of Arbitration Law 2009, the LCA is, in fact, a private sector driven institution, independent of regulation, direction or control by any branch of government. The LCA currently has 200 professional members.

The LCCI is the second oldest and most active chamber of commerce in Africa, with over 2,000 members.

International Arbitration Conference in Addis Ababa - 2015

International Arbitration Conference in Addis Ababa – 2015

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