Stakeholders in the legal profession have converged in Lagos under the aegis of Nigerian Institute of Chartered Arbitrators , where they discussed issues affecting the administration of justice and how arbitral awards impact negatively on issues of arbitration.
Specifically, the participants at the program spoke on “Setting Aside Arbitral Awards and its Implication; Enforcement of Arbitral Awards, Challenges and Prospects; the Role and Impact of ICT in Arbitration and Enforcement of Awards.”The Nigerian Institute of Chartered Arbitrators Conference had in attendance a former President of the Nigerian Bar Association, Dr Olisa Agbakoba SAN, the second Vice-President of NICArb, Prof Fabian Ajogwu , SAN, the Presiding Justice, Court of Appeal, Lagos Division, Justice Mohammed Garba, who represented the appeal court President, Justice Zainab Bulkachuwa. Also in attendance were the President, National Industrial Court, Justice Babatunde Adejumo and Mr Muniru Liadi, who represented the President of the Nigerian Bar Association, Mr. Paul Usoro, SAN.
Speaking on the role of information communication technology, Chief Executive Officer, Comnavig ICT Consultants, Dr. Segun Aina, OFR, FCArb, Chairman, Fintech Associates, in his remark noted that no meaningful development can occur without the input of technology. He added that it is becoming more and more impossible to exist today without the use of technology, stating that the first point of thought in this regard is the mobile phone. The thoughts of the speakers, among other things, include the possibilities of applying complex technology to arbitration, such as robots, etc., which though can pose some challenges if not well planned and prepared for.
They lamented that, while Africa is on the rise with respect to arbitration, the impact is not felt in the number of appointments of international arbitrators from Nigeria or within the African continent. An example of Singapore Institute of Arbitration Centre which has received over 400 arbitration matters was mentioned with its strong points including but not limited to the following: knowledge of arbitrators, excellent arbitration facilities, integrity, etc. The speakers were clear on the importance of data to arbitration, “for without data, we grope in the dark.
“ The stakeholders hampered on the fact that Nigeria must become part of the Digital Evolution and come up with High Level Strategic Framework required to integrate arbitration into ICT, Project Drivers, Aggregated Information and identify the critical components in the ICT Revolution. The nexus between ICT and arbitration proceedings, the relevancies and opportunities that ICT offers in the area of enforcement of arbitral awards to tracking of debts, amongst others.
The speakers emphasized on the need for arbitrators and practitioners to up skill their knowledge in ICT, up skill their resources on Artificial Intelligence (AI) and follow at the next steps of ICT Technology. Other issues that were discussed included incidents of Setting Aside Arbitral Awards and its Implications, Justice Binta Nyako, of the Federal High Court, Abuja, recommended that in order to be able to curb the incidents of unwarranted applications for setting aside arbitral awards parties and practitioners must do away with the adversarial mind-set which presents a situation of litigating during arbitration. She noted that the reason a lot of awards are set aside is because practitioners would challenge nearly everything.
According to some of the speakers, in the financial sector, arbitral awards are often challenged because of lack of expertise of some of the arbitrators, wrong parties being joined in the arbitration matter, etc. They cited instances where successful parties could not recover the cost of award executed in their favour because the award was made against the wrong party. The speakers shared various experiences and made recommendations on how such incidents can be reduced or totally eradicated.
These experiences were drawn from Singapore, where ADR is incorporated into their Constitution and over 80% of their cases go through arbitration and other ADRmechanisms. The recommended that to avoid the setting aside of arbitral wards, parties and arbitration bodies must ensure that in appointing arbitrators or constituting a panel, the arbitrators so appointed have the requisite knowledge, expertise and integrity, and are not conflicted in any way, given that these are the potential grounds for setting aside arbitral awards. relevance of data collection and analysis in the arbitration field was addressed by the representative of the Statistician-General of the National Bureau of Statistics.
He observed that there are confidentiality constraints in relation to data gathering in respect of arbitration, as arbitration is private in nature. He stated that the current data shows decline in Nigeria’s economy from 2015 to date though award compliance level is still low. Other points raised by the speakers, were that arbitral awards should be final and binding except in some extreme circumstances like corruption and fraud on the part of an arbitrator. They also recognised that sometimes arbitral awards are set aside based on the question of law. The issue of ferrying arbitration matters outside the shores of Nigeria and the West Africa sub-region was a major source of concern to the speakers, especially where the subject matter and parties are localized.
Speaking on the Enforcement of Arbitral Awards, the stakeholders identified the attitude of legal practitioners as one of the biggest challenges why arbitral awards take so long to be enforced. They described this attitude as “Gorilla Advocacy.” Emphasis was also made on the need to educate lawyers on the importance of embracing arbitration as a viable mechanism for resolving disputes. The shortage of judicial manpower was also identified as a contributing factor, stating that when an award is being challenged in court, the time spent in litigation is extensive due to the fact that judges are few and the few ones are over laboured.
The speakers noted that when parties desire to employ fast track in legal contests regarding arbitral awards, the entire judicial process invariably becomes slow as it is the same number of judges that would be required to handle the fast track items. Recommendations were made, among which are: appointment of more judges to specifically handle arbitration matters in contest; and that parties seeking to challenge an award being required to deposit in court the sum awarded or provide a bond in that value before instituting an action in court to challenge the award.
One of the advantages highlighted by the speakers is that the interest that accrues on the award sum deposited in court during the period of challenging the award will pass to the party who in the end is the award creditor.
SOURCE: Vanguard, 1 November, 2018