Arbitration and conciliation act amendment bill will contribute more to efficient arbitration practice
Dr. Ademola Bamgbose is a lawyer in international arbitration at global law firm, Hogan Lovells, and is admitted to practice in Nigeria, England and Wales. He is also a visiting lecturer at Nigeria’s premier university, University of Ibadan, where he teaches international arbitration at postgraduate level. In this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, he shares his views on the state of arbitration in Nigeria and Africa.
‘Arbitration is gaining more attention in Africa such that lawyers are being encouraged to embrace it. How did you get into it? Is it something you had always wanted to do?
I have always enjoyed dispute related works. I started my career at one of the leading commercial law firms in Lagos where I had the opportunity to represent both local and international clients at superior courts in Nigeria. I enjoyed devising case strategies, preparing my written submissions and doing my advocacy in court. At the time, I did majorly litigation and my exposure to arbitration was somewhat limited. Sometime in 2011, I came across an insightful article about the expected influx of investment into Africa and the effect this development will have on the practice of arbitration in Africa. I saw arbitration as an exciting career prospect – one that will allow me to dispute work on a sophisticated and international level, so I set out to learn and gather as much experience as I could in the field. Consequently, I went on to study international arbitration as a module at the University College London during my LLM course and also completed a PhD in international arbitration at the University of Warwick. My PhD examined the arbitration practice in Nigeria, Ghana and the OHADA region.
Eager to gain practical experience in the field, I completed a couple of internships while studying. For example, I completed an internship at one of the foremost arbitration institutions in the world – ICC International Court of Arbitration in Paris. I also completed an internship with the dispute team at Hogan Lovells, London. During my time at Hogan Lovells, I had the opportunity to see and be involved in the high-value and very sophisticated disputes being handled by the firm. I was particularly thrilled to be involved in complex and exciting arbitrations across Africa, so when I was offered the opportunity to interview and join the firm, I accepted it and it has been a worthwhile journey. I have enjoyed every single moment of my practice, engaged in some of the high-value disputes going on in Africa, enjoyed meeting and working alongside local counsel across the continent, and learning more about the different cultures and legal regimes in Africa.
Frontline arbitrators are promoting Nigeria as an arbitration-friendly jurisdiction. Where is the country today with the advancement of commercial arbitration and how is this impacting on our economic growth?
I will say that a lot is being done to advance the practice of commercial arbitration in Nigeria. From my work in Nigeria and interaction with colleagues in Nigeria, I am aware that there is a push to ensure that the Nigerian arbitration practice stays in line with global practices. For example, there is Arbitration and Conciliation Act Amendment Bill in the offing, which when passed will definitely contribute to a more efficient commercial arbitration practice in Nigeria. This bill, which is largely based on the UNCITRAL Model Law 2006, incorporates international arbitration trends like the emergency arbitrators’ provision and third party funding provisions amongst others. It also introduces provisions intended to allow for a more efficient arbitration and enforcement process in Nigeria. For instance, the Arbitration and Conciliation Act Amendment Bill sets up an Award Review Tribunal to deal with any challenges to an arbitration award.
I am also aware of efforts by arbitration institutions in Nigeria to train and equip Nigerian lawyers on the practice of international arbitration. Only recently, I was invited to speak at the CIArb-YMG annual conference and also participated in a training jointly organised by the ICC-YAF and CIArb-YMG in November 2019. These are just few examples of high-quality training and knowledge exchange programmes being put in place to ensure that practitioners are properly equipped for the future. Having said that, I think a lot still needs to be done if we are to fully derive the benefits of arbitration in our economy. For one, I have always advocated that we focus on developing our domestic arbitration practice. A thriving domestic arbitration practice not only benefits local lawyers, companies and businesses, it also sends a strong message to the international arbitration community that we are indeed an arbitration-friendly jurisdiction and can in the near future be trusted to successfully administer the large international commercial arbitration disputes.
Do you think Nigerian judges are beginning to show more commitment to the promotion of arbitration in the country?
The courts have in recent years definitely shown more commitment to the promotion of arbitration and ADR in Nigeria. In May 2017 for example, the Chief Justice at the time, Hon. Justice Walter Onnoghen issued a Practice Direction on Enforcement of Arbitration Clause in Commercial Contracts mandating Nigerian judges to insist on the enforcement of an arbitration clause by declining jurisdiction and awarding substantial costs against parties who try to circumvent a validly made arbitration agreement. The learned Chief Justice rightly recognised that no investor, whether domestic or international, will like to have his investment tied down in seemingly endless litigation. I am also aware of a number of pro-arbitration decisions delivered by Nigerian courts in this year alone. The Supreme Court in Mekwunye v Imoukhuede refused the appellant’s attempt to resile from a validly made arbitration agreement on technical grounds.
Additionally, there was a remarkable decision delivered by Justice Nnamdi Dimgba of the Federal High Court in NNPC v Total & ors, in which the learned judge declined jurisdiction in an action brought to challenge an arbitrator’s jurisdiction. Relying on section 9(3) of the Arbitration and Conciliation Act, Justice Dimgba rightly held that a previous decision of the arbitration tribunal on its jurisdiction was final and binding on the parties and was to be respected by the court since the Arbitration and Conciliation Act had not given the court the jurisdiction to review or supplant the court’s own view with that of the tribunal. With recent decisions like this, I can conclude that Nigerian courts are definitely more supportive of the arbitration mechanism and process.
In your opinion, what are some of the unresolved issues between Federal arbitration regimes and sub-national arbitration regimes in Nigeria?
There is still the question as to whether or not State Arbitration Laws based on the Arbitration Ordinance of 1958 survived the existing Arbitration and Conciliation Act. I however believe that the controversy is largely academic and its effects not significant in practice any longer.
What new frontiers can arbitrators in Nigeria explore at this time, to improve the speed of resolving arbitral disputes, taking into consideration the convenience of parties?
Technology! Parties can save time and money with the effective use of technology. Not all hearings have to be conducted physically. Many times, it is difficult for parties to agree on a mutually convenient time to convene for physical hearings, especially in international arbitration and so parties have to agree on dates that are far in the future. I however think proceedings would move along more efficiently and cheaply if we explore video conferencing and teleconference hearings. Besides, I strongly believe that simple interlocutory applications should be dealt with on the basis of documents filed. Parties should be able to make simple applications by email and the tribunal allowed to deliver simple decisions by email. One of the hallmarks of arbitration is party autonomy and flexibility – we should take advantage of these and treat arbitration less like litigation.
Do you think the enforcement of arbitral awards is still a major setback to the development of arbitration in Nigeria?
It definitely is. Unfortunately, there is a general tendency in Nigeria for the losing party to either seek to set aside or frustrate the enforcement of a validly made award on spurious grounds, using the instrumentality of the court. As a result, a successful party to a properly conducted arbitration finds himself engaged in two different set of proceedings – an arbitration proceeding and a subsequent litigation proceeding in order to enforce an arbitration award. Parties who opt for arbitration in Nigeria therefore find themselves spending more money and time resolving their dispute by arbitration than they would have if they had opted to resolve their dispute in court from the start.
Having said that, the Arbitration and Conciliation Act Amendment Bill introduces a number of provisions, which I think would in the long run cater for the problem of enforcement. For one, it replaces the current grounds for setting aside an award in the existing Nigerian Arbitration and Conciliation Act, and instead embodies the clearer grounds contained in the Model Law 2006. Also as mentioned earlier, the bill introduces an Award Review Tribunal specifically set up to review any challenge on the arbitration award, thus protecting parties from the congestion in our judicial system. In the new bill, the court is only allowed to intervene or revisit the decision of the Award Review Tribunal on the grounds of arbitrability and public policy, which as you know are very niche grounds.
Some believe the cost of arbitration is discouraging, irrespective of its merits against traditional litigation. Do you share the view that it should be reviewed to accommodate low-income earners in business?
I think that it is one side of the story to label arbitration as costly. I believe costs of arbitration are usually tailored to suit the particular type of dispute in any given situation, and the work that will go into resolving it. This means that even low-income earners can resort to arbitration and agree on costs that are reflective of the resolution process they wish to embark on. For example, it is open to parties in arbitration to relax on procedural rules, define the area of dispute, opt for sole arbitrators, agree on what should be decided and diligently work within a defined procedural timetable. Moreover, just like every kind of service, the Nigerian arbitration community offers different ranges of services which are available to people based on their spending power and the requirements of the case. Within the big firms and even in smaller law firms, there are arbitration practitioners that are adequately equipped to conduct arbitration cases and able to accommodate low-income earners or small businesses.
Nigeria aspires to join leading arbitration-friendly countries like the UK, Singapore. How will you rate our effort at providing the needed infrastructure and enabling environment which will make Nigeria more attractive as a destination?
By destination, I assume you are referring to venue, which as you know is different from the seat of arbitration. I think Nigeria has the potential to be an attractive and convenient venue. Earlier this month, I was at the Lagos Court of Arbitration’s impressive facility in Lagos. I am also aware that certain hotels and facilities in Lagos and Abuja offer the kind of service obtainable anywhere in the world, including convenient meeting rooms, electricity and excellent Internet service. However, there is still a lot to be done in terms of making Nigeria a more enabling and attractive environment including the issue of security.
How viable is arbitration as an alternative to litigation and how can it be generally promoted amongst court users in Nigeria?
Arbitration is certainly a viable alternative to litigation, subject to the usual questions on arbitrability and public policy. Parties are able to avoid the congestion in our judicial system and also appoint experts to resolve sophisticated disputes. Parties, especially corporate parties are able to benefit from the confidentiality and privacy of arbitration proceedings. In terms of the promotion of arbitration, I think lawyers have a major role to play by educating and/or advising their clients on the advantages of arbitration and encouraging clients to incorporate arbitration agreements in their contracts.
What are your thoughts on diversity in International Arbitration and what are you doing in your own personal capacity to improve diversity?
A lot still needs to be done to achieve the much-needed diversity in international arbitration. We need to see more Africans play active roles in international arbitration conferences and proceedings, especially in relation to Africa. As one of few African arbitration lawyers working at a global law firm, this is something I am passionate about and I am grateful to work alongside colleagues at Hogan Lovells, who share and support my passion to improve diversity in international arbitration.
In terms of my personal contribution, I co-founded Africa Arbitration– a platform designed to project the growing arbitration practice in Africa and showcase some of the intelligent and experienced arbitration practitioners already doing work in Africa. Among the many features of Africa Arbitration is the “Personality of the Month” and “Rising Star” monthly series. These two initiatives were designed to recognize and promote African arbitration practitioners from around the globe, to the rest of the international arbitration community. A couple of months ago, I met up with a colleague from another firm in London and he mentioned to me that his firm had found the “Personality of the Month” series very useful and that his firm had appointed one of the African lawyers we featured, as local counsel in one of their arbitrations. This kind of feedback makes the time and money invested into Africa Arbitration, totally worth it. Africa Arbitration also provides an “Opportunities for Africans” column, where opportunities from across the globe are gleaned and shared for the benefit of Africans. Unfortunately, many Africans are not privy to job opportunities and international competitions, so we have tried to make information about these opportunities readily available.
Drawing from my academic background and training, I also co-manage the Africa Arbitration Blog. The blog is intended to encourage discussions on the arbitration practice in Africa and indeed provide a launch pad for relatively unknown but brilliant African practitioners to showcase their knowledge to our wide audience and followers from across the globe. I am also a founding member and a Director of the Africa Arbitration Academy (AAA). I strongly believe that we need to equip the next generation of African lawyers with the skills and experiences required to compete with their colleagues from other jurisdictions – this is one reason the Academy is dear to my heart. At its inaugural session in June 2019, AAA brought together 30 practitioners from across 14 African countries for a sponsored (accommodation and return flights) three weeks training in London. Partnering with other members of the steering committee, I worked with leading city and magic circle law firms, as well as arbitration institutions in Africa, Asia and Europe, to design an advanced arbitration course for up and coming arbitration practitioners in Africa.
I am also a founding member and Vice President (International) of the Association of Young Arbitrators – a group designed to create opportunities for young African practitioners. We have in the past organised a mentoring scheme where we paired young arbitration practitioners with leading international arbitration practitioners doing work in Africa (including international arbitration lawyers at my firm). We have also co-organised an Intra-African Award Writing Competition, which my firm, Hogan Lovells sponsored.
Of course, I acknowledge that there are different facets to diversity, including gender and social background. A lot still needs to be done in relation to these different elements of diversity in the field of arbitration and international law practice generally, and it is going to take the re-orientation and cooperation of the different stakeholders to understand the need and immense value of diversity.
Do you have any advice for young practitioners?
I would say to young practitioners that we could start to pursue our dreams early enough. As African economies open up and global interest in the continent increases, the opportunities for the young Nigerian lawyers are boundless. Lawyers with interest in dispute resolution should expect that the projected increase in foreign investment would inevitably result in an increase in the settlement of disputes through mechanisms like arbitration.
It is therefore important for the young practitioner to prepare his or herself to tap into the benefits that are to come. It is therefore not enough to complete the CIArb membership courses and arbitration related courses. A lot more still needs to be done to build a successful international arbitration practice. For one, arbitration disputes revolve round substantive areas of the law and commercial issues. A good knowledge and understanding of the law and commercial issues is therefore pertinent, as no one will appoint an arbitrator or counsel with no content. Young practitioners need to do all they can do to stay on top of commercial law and issues. Young lawyers should also be looking to carve a niche for themselves – this is going to be important in the years to come with the influx of sophisticated foreign investment. Finally, I cannot overemphasise the importance of maintaining a professional network and an excellent reputation, especially among your peers.
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