Lagos, 18-19 June 2018

ICC Arbitration: Innovation on the basis of tradition for quality

Members of the panel: Funke Adekoya, SAN (Partner and Head of Dispute Resolution practice group at AELEX, Nigeria; Vice-President of the ICC International Court of Arbitration), Tunde Ogunseitan (Counsel, ICC International Court of Arbitration, Paris), Karl Hennessee (Senior Vice-President, Office of General Counsel, Airbus Group, France; Chair of ICC DRS Governing Body), Sami Houerbi (Director, ICC Dispute Resolution Services MENA).

The session addressed the ICC’s scorecard with respect to its new Expedited Procedure Provisions (EPP) and how this process can improve efficiency and effectiveness of the ICC Court processes, particularly for small claims. The impact of the EPP was discussed in the light of arbitrations involving African parties and the availability of African arbitrators.

The combination of speed and reduction in costs under the EPP has made ICC arbitrations more attractive from the user’s perspective. One of the challenges with the EPP, however, is that arbitrators involved will have the unenviable task of balancing efficiency with due process.

Clause and effect: Seating your arbitration in Africa

Members of the panel: Olatunde Busari, SAN (Partner, Akinwunmi & Busari LP, Nigeria), Hakeem Seriki (Consultant, Steptoe & Johnson LLP, United Kingdom), Pascal Madu (Managing Senior Partner, P.G.U Madu & Associates, Nigeria), Gbolahan Elias, SAN (Partner, Akinwunmi & Busari LP, Nigeria).

The session explored how African jurisdictions responded to the requirements of an arbitration friendly environment, how this has impacted arbitration on the Continent and encouraged foreign investment. One of the laws adopted by many African countries to achieve the objective of creating an arbitration friendly environment is the UNCITRAL Model Law. For Francophone African countries, the OHADA (Organisation for the Harmonization of Corporate Law in Africa-known by its French acronym) system has been adopted by over 17 African countries. On encouraging foreign investment, it was noted that an arbitration friendly environment was not the only factor considered by foreign investors when deciding to invest in the Continent. Cultural diversity, with respect to the various legal systems that operate within the States was a major point. Some States indeed have a plurality of legal systems and this may positively or negatively affect foreign investment depending on the quality of legal advice received.

International arbitration awards: First bus or last stop

Members of the panel: Fidelis Oditah, QC, SAN (Senior Partner, ODITAH, Nigeria), Maryan Hassan (Chief Legal Adviser & Negotiator, Federal Government of Somalia) and George Burn ( Partner, Bryan Cave Leighton Paisner LLP, London).

The discussions focused on how final arbitral awards rendered on the Continent were enforceable against the backdrop of domestic and international legislations, conventions and proposed initiatives.

With respect to speed, finality and effectiveness of a decision reached by an arbitrator, should there be circumstances in which parties may be permitted to take steps to correct errors in arbitral decisions? Should such correction be towards attaining justice or ensuring the integrity and consistency of the arbitral process and can the two be distinct? The panellists were of the view that it depends on the nature of the claim, the level of correction, the composition and experience of the tribunal and local arbitration laws. In Nigeria for instance, errors on the face of an award may amount to misconduct and the setting aside of such awards. This has had the adverse effect of increasing litigation relating to the arbitration process. On whether justice and consistency in the arbitral process was distinct, the panellists concluded that it was almost an academic question as justice and procedure were inseparable in arbitration.

Africa arising: Stemming the flight of arbitral disputes

Members of the panel: Oba Nsugbe QC, SAN (Barrister, Pump Court Chambers, United Kingdom), Oluwatosin Lewis (FCIArb Executive Secretary, Lagos Court of Arbitration) Jimmy Kodo (Doctor in Law, CCJA of OHADA, Office of the President, Ivory Coast), IIham Kabbouri (Trainee Solicitor, Hogan Lovells LLP, Dubai).

The session focused on issues that arise from delocalising African arbitral disputes.1

The panellists opined that actively addressing the misconceptions surrounding arbitration centres in Africa is key to encouraging seating arbitration in the Continent. These misconceptions include issues of security, the judicial process and the engagement of international best practices.

African countries need to focus on policies that will enhance ease of business in their countries and provide strong structures and institutions to encourage arbitration. Governments should also formulate policies to encourage the seating of the arbitral process in their country. These States may take a cue from the Government of the United Arab Emirates (UAE) that seated arbitrations (through its arbitration clauses in its contracts) within its territory if one of the parties is a UAE government agency. In addition, law reform, training and capacity building, partnership between the African arbitration centres and attitudinal change of the judiciary in favour of encouraging arbitration are all ways to increase the seating of international arbitration in the Continent.

The panellists distinguished between the ‘venue’ and ‘seat’ of arbitration (i.e. the country whose laws apply to the arbitration). They noted that a starting point will be to have the seat in an African country and have laws of that State apply to the arbitration regardless of the physical location of the arbitration. The next step will be to have both the seat and the venue of arbitrations located in African countries as this will also enhance the local economy where such arbitrations are conducted.

Supporting the arbitral process

Members of the panel: Dr Omo-Eboh Ogbai (Partner, Consolex Legal Practitioners, Nigeria), Ike Ehiribe (7 Stones Commercial & IP Chambers, London), Elizabeth Oger-Gross (Partner, White & Case, Paris), Tim Hardy (Consultant, CMS, London), and Justice Roli Harriman (High Court Delta State, Nigeria).

The discussion addressed how arbitration as a construct of private arrangement is still subject to regulation and enforcement. Panellists identified the various bodies which support arbitration and the arbitral process and examined their roles vis a vis their objectives.

The discussions highlighted the relationship between International arbitration and national courts and identified it as one of partnership. Thus, the more support the court can give to arbitration in their state, the better for the economy of that state and Africa in general. Partnership between arbitration and the national court is thus like a relay race with one passing the baton to the other until the purpose of the arbitral process is achieved. In order to achieve this:

  • The arbitration clause should be properly drafted to avoid ambiguity especially regarding the constitution of the arbitral panel.
  • The arbitration clause must be drafted in a way to minimize the intervention of the court.

African judges should be more globally minded and sympathetic to arbitration. Local lawyers should also desist from unnecessary challenges to arbitration in court. African governments and courts should realise that it is their responsibility to make their country attractive for arbitration. Adherence to international best practices is also important to remain competitive.

Arbitrability in Africa: New hopes or lost opportunities

Members of the panel: Diane Okoko (Partner, Marcus-Okoko & Co, Nigeria), IIham Kabbouri (Trainee Solicitor, Hogan Lovells LLP, Dubai), Hamid Abdulkareem (Partner, Aluko & Oyebode, Nigeria), Nikhil Desai (Assistant Director, Jmiles & Co., Kenya), Achille Ngwanza (Jus Africa SARL, Paris) and Tafadzwa Pasipanodya (Partner, Foley Hoag’s International litigation and Arbitration practice).

The discussion examined whether the approaches to arbitrability taken by African jurisdictions have led to an increased use of African seats or reluctance to arbitrate in African jurisdictions. Caution is also required in defining public policy when determining arbitrability.

The example of non-arbitrability of tax matters in Nigeria was raised. While some argue that tax matters relating to commercial activities where the main claim deals with the liabilities of parties under the contract are arbitrable, others were of the opinion that, regardless of commercial considerations, any matter remotely referring to tax should not be arbitrable. This was the position of the Nigerian Court of Appeal. The Court has since deviated from this position slightly by limiting non-arbitrability strictly to determination of tax liability and not to allocation of responsibilities in a contract. There are however grey areas in interpreting both positions.

Another example related to arbitrations in East Africa, where bribery and corruption are grounds to rob any contractual arrangement of its arbitrability. In these instances, arbitral awards are not set aside; rather the whole arbitration process is usually nullified on the basis of lack of arbitrability.

ECOWAS Energy Protocol: Issues and prospects

Members of the panel: Robert Wheal (Partner, White & Case LLP, London), Chinyelu Vivianne Onuotu (Counsel, Total E & P Nigeria Ltd), Mike Igbokwe, SAN (Partner, Mike Igbokwe & Co, Nigeria), Stephen Jagusch, QC (Chairman, Quinn Emanuel Urquhart & Sullivan LLP, London).

The panel discussed the effectiveness and the possible impact of the ECOWAS Energy Protocol.2 Billions of dollars will be invested by ECOWAS States in the near future, and particularly in the energy sector. The ECOWAS Protocol was analysed with respect to the promises made to investors to fair and equitable treatment, investment protection and security, no discrimination, free transfer of funds, and due process.

There are some drawbacks in the Protocol, such as the different interpretations that signatory States have with regards to its applicability. Practitioners were therefore encouraged to make use of the treaty and increase awareness of its provisions and the fact that it has been in force since 2003.

Damages tools: Globalising the analysis of damages

Members of the panel: Kathleen Paisley (Partner, Ambos NBGO, Belgium), Etigwe Uwa, SAN (FCIArb, Partner, Streamsowers & Köhn, Nigeria) represented by Queenette Hogan, Babatunde Ajibade, SAN (Managing Partner, S.P.A. Ajibade & Co., Nigeria), Thierry Senechal (Founder, Finance for Impact, France).

The panellists examined the use of the damages tools, such as the tool being developed by the ICCA-ASIL Task Force on Damages, and its possible impact on complex damages analysis.

Selecting a tribunal with damages expertise is important as parties need a tribunal to have a clear understanding of what the issues are. Expertise in damages may however be difficult to reconcile with the other many factors to consider when selecting arbitrators. This is where software tools on analysing damages become relevant and its increased use by arbitrators may contribute to save time and money in arbitral proceedings.

Conclusion

There is a need to increase the participation of African arbitrators in international arbitration. This can be achieved when more African parties engage African arbitrators for their ICC arbitrations. There is also a need for standardisation of practices of African arbitral institutions, recognising international best practises and collaborating with each other to develop the African domestic and international arbitration market.

Africa will likely play an important role in the future of international arbitration. With some of the fastest growing economies in the world, the opportunities for expansion of international arbitration arising from Africa is immense. Whether Africans themselves will be able to take advantage of this growth will depend on both the public and private sector players within the Continent.


1
See http://westafricancareers.com/stemming-the-flight-of-arbitral-disputes-in-africa/ visited for further developments on this issue.

2
The Economic Community of West African States comprises of 15 States: Benin, Burkina Faso, Cabo Verde, Côte d'Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. In 2003, the ECOWAS Energy Protocol envisaged the improvement of energy efficiency and increased use of renewable energies sources. The Protocol is available at http://investmentpolicyhub.unctad.org/Download/TreatyFile/5477.