Interview With The Ciarb Conference Chair

As plans get underway for the 2017 CIARB Annual Conference in Lagos, the Chairman of this year’s planning committee, FOLASHADE ALLI, speaks to the editor of LegalBusiness, THEODORA KIO-LAWSON on the developments in commercial arbitration; the Micro, Small and Medium Enterprises (MSME) Arbitration Scheme launched by the CIArb Nigeria Branch, capacity building for young arbitrators and the forthcoming conference. EXCERPTS…

As we prepare for another CIARB annual conference, where is Nigeria today with the advancement of commercial arbitration and how is this impacting on the country’s economic growth?

Nigeria has made some progress since the last CIArb (UK) Nigerian branch annual conference in the advancement of commercial arbitration. A significant development was the public support shown by the Chief Justice of the Federation, Hon. Justice Walter Onnoghen, for commercial arbitration sometime in June this year, when he appealed to judges to be cautious in their approach to matters where parties have previously stated in their agreements that their disputes be subject to arbitration. In this wise he also advised parties to honour their contractual obligations to resolve their disputes by the dispute mechanism they have chosen. He noted that in so doing foreign and domestic investors will have greater confidence in transacting business in Nigeria. We believe that such pronouncements by leaders of the judiciary will assist in no small way, to portray Nigeria as an arbitration-friendly jurisdiction and this will ultimately impact on the country’s economic development. Prospective investors would also be encouraged to invest in Nigeria when they have the assurance that the inevitable disputes that arise in any commercial relationship, will be speedily resolved by an impartial and independent arbitral tribunal.

Last year, the CIARB Annual Conference explored new frontiers in arbitration and ADR, and this year the conference will be looking at ‘Strengthening the Building Blocks of Arbitration in Africa’. How far have we fared with the new frontiers we established last year and how would this conference further drive the overall objectives of the CIARB and Arbitration as a practice?

One of the aftermath of last year’s conference was the realization that there was a need to set up a Micro, Small and Medium Enterprises (MSME) Arbitration Scheme. The pilot MSME scheme was therefore launched by CIArb in 2017 for a specific range of commercial disputes ranging from N250, 000.00 (Two hundred hundred and fifty thousand naira) to N5, 000,000.00 (five million naira). The scheme is not however restricted to the stated range of monetary value. Following an application to the office of the Chairman, Chartered Institute of Arbitrators, (UK) Nigeria Branch outside the stated range, Costs and fees for referral will be determined by CIArb.

With this development and the desire to contribute to capacity building in MSME, this model will be a viable alternative to litigation and will generate final, legally binding and enforceable decisions in form of publication of Awards quickly and at minimal costs. The objective being that in reducing the overhead cost of dispute resolution for MSMEs, CIARB (UK) Nig Branch can contribute its own quota to national development as far as domestic arbitration is concerned.

One of the critical success factors in being able to make this scheme successful is to ensure that access to the scheme is not cost inhibiting. Thus cost effectiveness is ensured by a newly passed set of rules designed to guide proceedings through simple, quick and affordable paths to resolution.

It is advantageous to parties if in the drafting of their commercial agreements, invoices, receipts and contracts, that they insert our recommended Arbitration Clause as set out in the MSME Arbitration Scheme Rules. This ensures the existence of an arbitration contract/clause with guaranteed access to the use of arbitration to resolve disputes or misunderstandings when such occur. Without such clause or agreement, mutual consent of parties in another contractual agreement will have to be executed separately before the MSME arbitration rules can apply. The likelihood of parties having such agreements after the dispute has arisen is however slim and so our advice is to have such clauses inserted from the beginning.

CIArb continues to explore new frontiers in order to improve on the speed of resolving disputes, taking into consideration the convenience of parties. This has also brought about the encouragement of online dispute resolution.

The topics selected this year essentially pick up the conversation from where we left off at the last conference and at the same time set the agenda for the future of arbitration in Africa.

One of the things we set out to achieve with the upcoming conference is to provide a platform where topical issues affecting the development and practice of arbitration, in not just Nigeria but Africa as a whole. This will be discussed by leading experts on the various subjects. To this end, we have sessions that will deal with issues such as: the challenges faced in the enforcement of arbitral awards; recent decisions of African courts that tend to shield African practitioners from competition by foreign counsels; the unresolved tensions between Federal arbitration regimes and sub-national arbitration regimes in federations such as Nigeria; the increasingly important role digitalization is playing in commercial arbitration; and how arbitration can serve as a catalyst for socio-economic development in Africa.

We understand that there are over 30 international and local speakers including arbitration policy makers, policy enforcers, practitioners and users from the business community attending this conference, how do the engagements at this event actually drive policy? What next after the talks?

Previous conferences have focused on the challenges faced by arbitration practitioners, which ultimately has resulted in the clamour to review the existing Arbitration Act. This time around, we want to go a step further by putting arbitration-users at the heart of the discourse. It is hoped that the conference will provide arbitration-users with an opportunity to discuss the challenges they face as a result of the way arbitration is conducted in their various jurisdictions and thereby assist arbitration policy makers and enforcers in their task of improving the arbitration ecosystem.

Are there notable examples of how the deliberations at these Conferences have driven policy changes or led to the enactment of legislations in the past, which have impacted on the development of Arbitration and ADR in Nigeria? Could you please share this with us?

Deliberations at previous conferences has driven policy changes. One of the notable example is the clamour for the review of the extant 1988 Arbitration and Conciliation Act in Nigeria.  The most significant development recently is the public hearing in June 2017 at the Senate to consider a review of the Arbitration and Conciliation Act (Amendment) Bill. This bill when passed into law, will repeal and replace the Arbitration and Conciliation Act of 1988 with a new Act that will be more in tune with the UNCITRAL Model Law of 2006. It is hoped that our legislators will maintain this momentum and ensure that this Bill is passed into law as quickly as possible.

Another significant aftermath of deliberations at previous conferences is the awareness amongst arbitration practitioners of the plan of the National assembly to pass a bill seeking to establish in Nigeria an Alternative Dispute Resolution Regulatory Commission, which seeks to regulate the practice of arbitration. This Bill if passed into law would regulate and control those who are eligible to practice arbitration in Nigeria. This proposal met with stiff opposition from the arbitration community recently in Nigeria who came together under one umbrella to sign a Communique to ensure that the National Assembly does not create such a statutory body to regulate the practice of arbitration in Nigeria. Such a proposal would negate the very essence of arbitration as being independent and a consensual way of resolving parties’ commercial dispute(s).

As a body, are there defined methods used by the CIARB (Nigerian Branch) to make Nigeria more attractive as a destination and to generally promote the use of arbitration amongst court users in Nigeria? If yes, how is that going?

Holding annual conferences is one of the ways we make Nigeria more attractive as a destination for arbitration. You will notice that our theme and the diverse origins of the speakers at our conferences reflect our desire to showcase Nigeria as an arbitration destination. Beyond that, we also engage in legislative advocacy hence we are actively involved in the drive to reform Nigeria’s arbitration laws with a view to bringing them in line with those of the more established arbitration destinations and international best practices. We also conduct training for arbitration practitioners, which inevitably help to increase Nigeria’s pool of arbitration practitioners. This gives arbitration-users a wider choice of practitioners and positions Nigeria as an attractive arbitration destination in comparison with her African contemporaries.

Do you think Arbitration and ADR has been effectively used as a catalyst for economic development among African countries? If yes, how can this be improved upon?

Arbitration and ADR has definitely played a major role in the economic development among African countries. One of the factors that foreign and local investors consider is a country’s legal system and legal structure. This is because these two factors play a major role in establishing investor confidence in any country’s business climate. In addition, by the very nature of commercial transactions and ensuing disputes, ADR is the fastest and most practical dispute resolution option. We have come a long way but we still have a lot of work to do. It is my belief that all major stakeholders need to play their parts effectively for us to see meaningful improvement in our ADR structure and patronage in Africa.

This in fact, is one of the matters to be discussed extensively at the conference.

What should participants expect from the 2017 conference– by way of sessions, social activities, guests, speakers, panelists, etc.?

The Conference Planning Committee, under the chairmanship of my humble self, Mrs Folashade Alli CIArb have been working assiduously to see that this year’s edition is a huge success. We have come up with innovative measures to spice up the event. Participants should expect a robust, intellectually engaging and informative three-day conference.

The main conference starts from Thursday, the 2nd of November and ends on Friday the 3rd of November 2017 with an All white dress code gala Nite and Induction of new members.

We have had a sneak peek at the conference schedule for this year and we have seen some very hot and engaging topics on the burner, however are there specific segments of the conference you consider the highpoints of this year?

Like you rightly mentioned, very interesting and relevant topics have been carefully selected for the conference and it is our expectation that every single one becomes a highpoint. In addition, this edition of the conference will feature special interactive and debate form  sessions . One of the sessions will be moderated by a very popular personality. We have plans to make the conference not only educative but also entertaining.

How affordable are the CIARB conferences and are there special considerations for young practitioners, as is the practice with top international conferences today?

CIArb Nigeria Conferences are very affordable.  The fee for this year’s CIArb Conference and Gala Night ranges between N7, 500.00 ($20) – N40, 000.00 ($109).

Due consideration  has been given to the Young Members Group (YMG) of the Chartered Institute of Arbitrators.  All interested young members (members under the age of 40) are encouraged to attend the Conference at discounted rates.  As earlier mentioned, a segment of the conference, the first day, 1st of November 2017 has been especially dedicated to the YMG and this at no additional cost to attendees, once you register for the Conference and Gala Night you will be able to attend to the YMG conference.

Speaking of logistics, what sort of arrangements have been made for both local and international guests during the conference?

There is a special committee within the conference planning committee for this year’s conference whose sole responsibility is to be responsible for logistics with respect to our local and international guests. This special group has negotiated discounted rates with major hotels, transport and logistics companies in Lagos for all the delegates. They will be at the beck and call of all guests to the conference. For further inquiries guests/registered participants are advised to send us an email. This, you can find on our website.

What would count as success for you at the end of it all (the conference that is)?

The success of any venture rests on the realization of its goals and such goals cannot be attained alone without the unflinching support of all the members of the Conference Planning committee who are too numerous to mention. The success of this Conference, for me, will be two fold, one to have a world class conference on Arbitration that will be spoken of for years to come and secondly that the majority of the sessions will inspire delegates to act proactively towards developing Arbitration practice in Africa. Indeed it is my hope that attendees will collectively identify the challenges that we face in Africa and agree on best practices that can be implemented. The implementation of such practices will be to allay the perceived fears by disputants in choosing Africa as their preferred destination in resolving disputes. Also that parties would be encouraged to start appointing qualified African arbitrators to International commercial disputes irrespective of their race or sex. Furthermore, it will be a bonus if the conference influences the passing of any relevant legislation that will improve the practice of arbitration in Nigeria and the African Continent.

Lastly the social aspect of the conference is also very important. The plan this year is to have an “All white dress code” induction and gala nite with an international food stand flavor.  It is hoped that the gala nite will create a good networking opportunity among delegates and that we will all have an enjoyable and memorable conference event. Thank you