Stakeholders seek better arbitration practices

Experts have echoed the need for better arbitration practices which involves moving away from adhoc to institutionalised arbitration where facts are the key elements of the process as against procedures.

This was at the Nigerian Institute of Chartered Arbitrators (NICArb) 2024 yearly conference, themed, “Transformation and Interventions: The Evolving Trends in Arbitration and ADR Practice in Africa”, held in Lagos.

Chief Justice and President of the Supreme Court of Kenya, Martha Koome, said Africa holds a unique position in shaping the future of dispute resolution.

Koome explained that it is not just about adopting a global trend in ADR but revitalising a great tradition and establishing innovative ways that shape the continent’s growth and promise of the socio-economic landscape within ADR while recognising that Africa is the repository of knowledge on dispute resolutions.

“Each of our societies has its way of resolving disputes. This is a well-established fact with a long history of relying on community-based dispute resolution mechanisms that predate modern judicial systems.

“Way before the formal judicial system existed, African societies relied on mediation, dialogue, negotiations and consensus-building to address disputes within our communities”.

“These indigenous practices entrenched social harmony and peace in our society, a core value in ADR today.

“As such, modern ADR practices are tied to our rich heritage of harmonious dispute resolution. Modern ADR practices also represent a continuation and enhancement of our old-age dispute resolution mechanisms to address our present-day needs,” she said.

She said that recently, there has been a shift towards ADR across Africa on account of various factors, which includes the fact that ADR is expedient and cost-effective compared to formal court processes.

To address challenges to the practice of ADR in Africa, she suggested the integration of ADR into formal legal frameworks and policies.

Lagos State Attorney General, Lawal Pedro (SAN), said arbitration helps in building trust, fostering partnership and accelerating development and has become the lifeblood of international businesses.

He said that the evolving trends in arbitration and ADR, digitalisation, specialisation and localisation, present unprecedented opportunities, which must be leveraged.

He highlighted that Africa needs indigenous arbitrators who understand the continent’s unique context and institutions that can compete with global arbitration centres.

President and Chairman of the Governing Council, NICArb, Professor Fabian Ajogwu (SAN), said the NICArb yearly conference has become a centre point in Alternative Dispute Resolution (ADR).

He said that it also serves as a significant forum for addressing the pivotal issues shaping the legal profession, playing a crucial role in propelling the practice of arbitration and ADR to new heights across the West African sub-region and globally.

Stating that the theme is timely and significant, he explained that whether local or international, transformations introduce disruptions and innovations to existing processes, necessitating proactive interventions by governments, institutions, and key stakeholders.

According to him, NICArb stands at the forefront of this transformative effort, collaborating closely with key stakeholders, including the Organisation for the Harmonisation of Business Law in Africa (OHADA), to bridge the gap between common law and civil law jurisdictions, promoting regional integration within the Arbitration and ADR industry.

Principal Partner, Babalakin & Co., Dr Wale Babalakin (SAN), said the greatest hindrance to investment in any country is a poor dispute resolution process.

He said that though there is a lot of money all over the world, Nigeria struggles to attract investment because of its weak track record in enforcing agreements.

According to him, 60 to 70 per cent of cases in Nigeria were decided on procedure and not substance, which is a failure of the country’s litigation process and needs to be addressed quickly.

He said that the ADR system is gradually falling on the same track, taking for ever to be concluded, while emphasising the need for an attitudinal change.

Babalakin urged arbitrators to display a high level of competence that would develop a reputation that arbitral awards in Nigeria are well-researched and well-decided.

Independent Professional Arbitrator and Professor of International Commercial Law, SOAS University of London, Emilia Onyema, said the important thing is the interpretation of the model law.

She stated that the new Nigerian Arbitration and Mediation Act is based on the model law which ensures that there is international consistency.

Onyema said that in the just published 2024 Arbitration in Africa survey, Nigeria is listed as one of the most unfriendly countries for arbitration.

Senior Manager of African Export-Import Bank, Enga Kameni, said most lawyers they have come in contact with within the course of arbitration are not aware of what is going on in the continent such as the African Continental Free Trade Area (AfCFTA).