1. HARNESSING INFORMAL CROSS BORDER COMMERCIAL DISPUTE RESOLUTION MECHANISMS FOR ECONOMIC DEVELOPMENT IN WEST AFRICA Presented by Oluwafemi A. LADAPO (Chartered Arbitrator and Mediator) State Counsel Ministry of Justice, Ibadan, Oyo State, Nigeria..

2. Wherever peace is lacking, business cannot grow!

3. ECOWAS’ response to sub-regional conflict issues ECOMOG √ High Powered Mediations √ Conflict Prevention Framework √ Commercial dispute management x

4. But also, wherever commercial disputes cannot be efficiently managed, trade cannot flow!

5. Inefficient trade ∝ 1. dispute management Trade flow

6. Dispute Management Mechanisms

7. Time (in days) to enforce a contract by litigation (adjudication) in WA Source: World Bank 2010

8. Cost to enforce a contract by litigation (adjudication) in WA (% of claim) Source: World Bank 2010

9. Number of Procedures to enforce a contract by litigation (adjudication) in WA Source: World Bank 2010

10. Enforcing Contracts Across Regions * Source: World Bank 2010 RegionProcedures (number) Time (days) Cost (% of claim) Economic Community of West African States (ECOWAS) 39.6622.848.0 East Asia & Pacific (EAP) 37.2538.148.5 European Union (EU) 31.6547.720.5 Middle East & North Africa (MENA) 43.4679.923.7 Southern African Development Community (SADC) 37.1645.152.0

11. Litigation (Adjudication) Strengths Binding outcome. Use of state might for enforcement. Widely known. Challenges Technical. Slow. Rigid. Expensive. Prone to systemic corruption. Parties lose total control of process.

12. ADR Strengths Parties own process. Time saving. Parties can shop for a bargain. Process less technical. Parties can choose their own rules. Challenges Enforcement. Recognition.

13. State of ADR in the ECOWAS sub-region Infancy

14. ARBITRATION TRIBUNAL ESTABLISHMENT AND FUNCTIONS 1. THERE IS HEREBY ESTABLISHED AN ARBITRATION TRIBUNAL OF THE COMMUNITY. 2. THE STATUS, COMPOSITION, POWERS, PROCEDURE AND OTHER ISSUES CONCERNING THE ARBITRATION TRIBUNAL SHALL BE AS SET OUT IN A PROTOCOL RELATING THERETO. Article 16 ECOWAS Treaty 1993

15. By a 2005 Protocol, the powers of the Arbitral Tribunal have been temporarily conferred on the ECOWAS Court of Justice.

16. Challenges facing the ECOWAS Court in the administration of its arbitral jurisdiction - Huddle of access through member countries. - System is litigation oriented. - Judges are trained for litigation.

17. WAY OUT Harness the potentials in modern and traditional dispute management mechanisms

18. Traditional ADR Strengths Easier access by parties of common background. Already in use. Draws commitment and compliance strength from culture common to parties. Mostly cost free or low cost. Usually conducted in language understood by both parties. Third-party interveners readily available. Appropriate for SMEs. Challenges Applicability where parties do not share common cultural background. Applicability to complex transactions. (But can adapt.)

19. Cross-border tongues and cultures: Opportunities for dispute management customs

20. Formulation of a robust framework which will sensitise member countries, business persons, judicial systems and other stakeholders in the commercial and financial services industries on the use, recognition and cross-border enforcement of non-judicial, commercial dispute resolution mechanisms (inclusive of both traditional and modern mechanisms), within the sub-region. Recommendations

21. Establishment of the ECOWAS Arbitration Tribunal as enshrined in article 16 of the 1993 revised ECOWAS treaty, along with rules for its efficient operation and sub-regional reciprocal recognition of awards. Recommendation contd...

22. Promotion of legal, legal-anthropological and legal-historical research on traditional trade cultures within the sub-region, including their commercial dispute management customs and the ways of adapting and utilising them for contemporary complementary and efficient management of commercial dispute. Recommendation contd...

23. Establishment of an institution which will conceptualise, research, promote, formulate policies and educate on issues of efficient broad-spectrum commercial dispute resolution within the sub-region. Recommendation contd...

24. Training of judges presiding in courts covering jurisdictions contiguous to border areas and judges of ECOWAS court on the existence, recognition and enforcement of the decisions of traditional cross border dispute resolution mechanisms. Recommendation contd...

25. Thank you for listening. WHAT YOU DO SPEAKS SO LOUD THAT I CANNOT HEAR WHAT YOU SAY - Ralph Waldo Emerson