Professor Paul Obo Idornigie. PhD, FCIS, MCIArb(UK) Nigerian Institute of Advanced Legal Studies Abuja, Nigeria

AGENDA 1. Introduction 2. Challenges  The Laws and Rules;  The Legal Practitioners;  The Court;  The Government;  The Arbitral Institutions;  Business community; and  Society as a whole 3. Conclusion

1. INTRODUCTION Increasingly arbitration is being accepted as the forum for resolving pure commercial disputes. Customary arbitration is still being practiced in Nigeria though there are challenges with the conditions for validity. We have had three broad regimes– Arbitration Ordinance 1914, Arbitration Laws/Act in the various Regions/States and FCT and Arbitration and Conciliation Act (ACA) of 1988.

Only Lagos State has a modern Arbitration Law – Arbitration Law of 2009 Nigeria is a party to the 1958 New York Convention and 1965 Washington Convention There are several arbitration institutions in Nigeria and several qualified arbitrators. The Courts play a supervisory and supportive role

Challenges However, there are challenges. In this presentation, we shall focus on the challenges

2. THE CHALLENGES I. The Laws and Rules; II. The Legal Practitioners; III. The Court; IV. The Government; V. The Arbitral Institutions; VI. Business community; and VII. Society as a whole

I. The Law & Rules: Reform of ACA The 1914 Ordinance which later became the Arbitration Law/Act was ideal for domestic arbitration. The ACA 1988 was inspired by the UNCITRAL Model Law (Model Law) on International Commercial Arbitration, The Model Law was amended in There is a draft ACA, 2006 which, apart from Lagos State, has not been passed into law. The Challenge with the ACA, therefore is that it has the following defects:

Application to set aside(ss.29 &30) Waiver of Right to Object (S.33(a)) Challenges of the ACA Principle of Separability Two Sections on stay of proceedings (Ss4 & 5.) Appointment of Arbitrator- default is 3 arbitrators (Ss 6 &7 Appointment of Appointing Authority (ss.44,45,49,50& 54(a)) No immunity for arbitrators No provision on Joinder Meaning of Writing No provision on Umpire

The Challenge with the ACA:  Two Sections on Stay of Proceeding (ss 4 and 5)  Appointment of Arbitration – default provision is three arbitrators and if there is default in appointing and the court appoints, no appeal (ss 6 and 7)  Principle of separability (s 12)  Waiver of right to object (s 33(a)  Appointment of Appointing Authority (ss 44, 45, 49, 50 and 54(a))  Repetition on the provisions on deciding ex aequot bono (ss 22 and 47  Application to set aside (ss 29 and 30)  No provision on immunity of arbitrators  No provision on joinder, and consolidation  Meaning of writing  No provision on Umpire  No provision on award of interest

What is the solution? Urge the National and State Assemblies to update the draft ACA and ACL 2006 and pass them.

II. The Legal Practitioners – as Counsel and Arbitrator Every Legal Practitioner assumes that he can act as a Counsel in arbitration and also act as an Arbitrator The Legal Practitioners play two major roles – as Counsel and Arbitrator though they can also act as Registrars As Counsel  ensure that an enforceable arbitration agreement is drafted; avoid pathological clauses  Attend training courses on arbitration;  Understand the laws and rules; and  Offer proper legal advice to your client before, during and after arbitral proceedings.

As Arbitrator –  Arbitration is not litigation  You trained to become a Legal Practitioner; you need to train to become an Arbitrator  Don’t bring the ‘excess baggage’ in litigation to arbitration  Remember your duties as a member of the NBA especially the Rules of Professional Conduct

What is the solution? Proper training for Legal Practitioners.

III. The Courts – section 34 ACA The courts play supervisory and supportive roles in arbitration. The judges should know their limitation as prescribed in section 34 of the ACA. Courts can intervene in the following areas:  S. 2 of the Act – Arbitration agreement irrevocable except by agreement or leave of court.  Ss. 4 and 5 of the Act – Stay of Proceedings.  S. 7 of the Act – Appointment of Arbitrators.  Ss. 9 and 10 of the Act – Challenge of Arbitrators/Failure or impossibility to act.

 Section 13 of the Act – Interim measure of protection.  Section 23 of the Act – Power of court to order attendance of witness.  Section 29 of the Act – Application for setting aside an arbitral award and remission of award.  Section 30 of the Act – Setting Aside in case of misconduct by arbitrator and removal of an arbitrator.  Section 31 of the Act – Recognition and enforcement of award.  Sections 32 and 52 of the Act – Refusal of enforcement of award..

What is the solution? Where a counsel brings any other application, the court should refuse it and award costs personally against the Counsel.

IV. The Government as Parties and Enablers Every government should  draw a line between a pure governmental act and a commercial act  obey the rules of the market  negotiate and draft contracts properly bearing in mind issues of governing law and place of arbitration  chose competent arbitrators  ensure that arbitral proceedings are efficiently and effectively conducted  honour arbitral awards.

What is the solution? Government should create an enabling environment for arbitration – the laws, rules, arbitral institutions and the infrastructure (social and economic)

V. The Arbitral Institutions Nigeria is a member of the Asian-Africa Legal Consultative Organization (AALCO). AALCO was first constituted in 1956 by Asian countries and expanded in 1958 to include African countries. AALCO has worked with the United Nations and the International Law Commission on the settlement of international commercial disputes. Under the auspices of AALCO, the Lagos Regional Centre for International Commercial Arbitration was established.

The Centre should be properly manned and funded so as to be a hub for arbitration in the sub-region. There are other Regional Centres in Cairo, Kuala Lumpur, Tehran and Cairo.

VI. The Business Community The Business community should know when to arbitrate and when to go to court. They should engage competent legal practitioners to advise them. They should belong to relevant Chambers of Commerce. They should know the arbitral institutions and services that they render. They should not negotiate and draft a contract without their Legal Practitioners. They need proper guidance on the appointment of arbitrators and how arbitral proceedings are conducted.

VII. Society as a Whole Disputes are incidents of trade and commerce Society benefits if disputes are properly analysed, categorized and processed.

3. Conclusions Arbitration is not the sole forum for resolving disputes. As Legal Practitioners, we should know how disputes are analysed, categorized and processed. Consequently, we should know when to go to court and out of court. Legal Practitioners should know which arsenal to deploy appropriately. Legal Practitioners should bear in mind the challenges facing arbitration in Nigeria and assist in proffering solutions.

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