I bring you warm felicitation from the editorial board. I hope that our members are staying safe in the light of our current realities. We are grateful to God that we have not received any b a d n e w s c o n c e r n i n g any member. We urge members to continue to stay safe and comply with all the extant regulations. This is the maiden edition of our journal. Even though this has been in the works and we had hinted members of the desire to make “The Arbitrator” an ejournal,two factors have made it necessary to begin now. The public up to date as we have done through the journal in the past. Thus, “physical distancing” i s n o b a r r i e r t o t h e “ T h e A r b i t r a t o r ” r e a c h i n g o u r members. This edition is special for a number of reasons. Apart from being our maiden attempt at an e – j o u r n a l ( w e h a v e a n e -newsletter), it features articles that discuss the current realities and propose ways to deal with the situation at hand. Our traditional staples such as the Chairman’s remark, the report from the secretariat as well as t h e e d i t o r i a l h a v e b e e n maintained. The articles in this edition are contemporary as well as timely. The Arbitration in the Construction Industry in Nigeria” draws our attention to the bene I welcome you to the maiden edition E-Journal of the CIArb Nigeria Branch. I hope we are all staying well and keeping safe during these trying times. I would like to thank you all for your support to the Branch. Your contribution to the growth of Branch and the CIArb Network and your support during this COVI-19 pandemic is extremely important to us and is appreciated. We had hitherto published paper copies of our Branch Journal “The Arbitrator” but in view of the COVI-19 pandemic we have now migrated to an E-Journal to continue to keep our members informed about our activities and developments in the arbitral community. In the first quarter of the year, Branch activities had to be s u s p e n d e d a n d t h e B r a n c h Secretariat closed following lockdown and restrictions on movement as a result of the pandemic. During the lockdown, the Branch held election into the Branch Committee. This was done via e-voting on the 8th of April 2020. Election was held electronically on 8th April, 2020 to fill the existing vacancies and the following were successful in the election.
· Mr. Akin Omisade
· Mrs. Josephine Akinwunmi
· Dr. Adeyemi Agbelusi
· Dr. Tayo Bello
· Mr. Ibifubara Berenibara
Also during the lockdown, the Institute released the CIArb Guidance Note on Remote Disputerd Resolution Proceedings. On 23 April, 2020, the Branch organized a webinar on “Remote Dispute Resolution where the CIArb Guidance Note on Remote Dispute Resolution Proceedings was discussed. The faculty at the webinar included Chief Bayo Ojo SAN, C.Arb, Immediate Past Trustee for Africa, CIArb. Other faculty members included Mrs. Adedoyin Rhodes-Vivour SAN, C.Arb, Immediate Past Chair, CIArb Nigeria Branch and Mr. Omololu B a j u l a i y e , D i g i t a l E x p e r t , University Lecturer, PhD Candidate at Tilburg University. Other webinars which have been held include· 5th May, 2020, Ibadan C h a p t e r w e b i n a r o n “Remote ADR: Feasibility, C h a l l e n g e s a n d Opportunities for Young ADR Enthusiasts”.· 21st May 2020, Abuja C h a p t e r w e b i n a r o n D r a f t i n g a V a l i d & Enforceable Award”· 12th June 2020, Port H a r c o u r t C h a p t e r s webinar on “Arbitration:Navigating the Current P a n d e m i c t h r o u g h T e c h n o l o g y ” o n respectively. 25th June 2020, Ibadan C h a p t e r w e b i n a r o n “ C h a l l e n g e s a n d Opportunities for Women in ADR During These Disputed Times” The Branch office re-opened on 11 May 2020 and it is observing the safety protocol laid down by WHO. We however advise our members to continue to make use of our phone lines and email addresses in the interest of public health and safety. In line with the restrictions on gathering and the social distancing policies in place, our courses are being delivered remotely. We have the following activities lined up; Accelerated Route to Membership P r o g r a m m e , I n t e r n a t i o n a l Arbitration on 10 , 13 & 14 July, 2020, Introduction to Domesticth th Arbitration on 14 & 15 July, 2020 and Arbitration Advocacy for th Lawyers on 30 July, 2020. Other courses include Arbitral t h Secretaries Training on 11 August, 2020, Introduction to th International Arbitration on 13th & 14 August, 2020, Accelerated R o u t e t o F e l l o w s h i p ,th International Arbitration on 14th th & 17 -20 August, 2020 and Introduction to Domestic t h t h Arbitration on 17 & 18 September, 2020. We have created a souvenir corner at the Branch Secretariat with items such as wooden membership plaques, lapel pins and branded facemasks. We intend to increase the number of available items to include ties and scarfs, cuff links in due course. to order for your wooden plaques, lapel pins or branded facemasks. Preparations are ongoing for 2020 Annual Conference of the Branch, which is scheduled to th th hold on the 26 & 27 of November, 2020. The YMG Conference will precede thet h conference on the 25 of November, 2020. In view of the p a n d e m i c , w e w i l l b e organizing a virtual conference this year. Details about the conference will follow shortly. Finally, I also encourage you to renew your membership with the Institute and work with us to promote a harmonious society. I am happy to welcome you to the maiden edition of the CIArb E-Journal. I hope you are all keeping safe during this COVID-19 pandemic. The E-Journal is a glorious compliment to the conventional hard copies of the CIArb News Journal, “The Arbitrator”. It has been an era of inter-state and intra-city “lockdown” and so, in keeping with current realities, we have decided to add an E-Journal to our array of publications. Since December 2019, the world has been grappling with the COVID-19 pandemic and this has negatively affected businesses. Sales and revenue have fallen and companies are facing the reality of downsizing or outright closure. The arbitral community has not b e e n l e f t o u t a s a r b i t r a l proceedings have been postponed and activities delayed, suspended or temporarily cancelled. This has affected the usual efficiency a s s o c i a t e d w i t h a l t e r n a t i v e disputes resolution. In the Nigeria Branch, even before the Federal Government of Nigeria and State Governments imposed the lockdown and restrictions on i n t e r s t a t e t r a v e l s , w e h a d s u s p e n d e d o u r c o u r s e s a n d activities and had also temporarily closed the Branch Secretariat on th 24 March 2020 in anticipation of the social distancing policy. This closure was to last for a period of 7(seven) weeks leading to a spell of inactivity and loss of revenue for the Branch as we were unable to physically hold training and arbitral activities during this period. It is not all gloomy as the pandemic created a unique opportunity for t h e C I A r b t o p u b l i s h t h e “Guidance Note on Remote D i s p u t e R e s o l u t i o n Proceedings”. This laid the foundation for the Arbitral Community to adapt to new and innovative ways of conducting remote and virtual hearings through the use of technology. It also brought awareness to new ways of carrying out daily activities in line with social distancing policies. With the gradual lift of the lockdown and restrictions, many organizations and ADR Institutions now work remotely from home while others work in shifts. C o n s e q u e n t l y, a r b i t r a t i o n proceedings and meetings are now largely conducted remotely as that is the only meaningful way of ensuring that we discharge our roles as disputes resolvers. In order to keep hope alive, I will highlight those activities that we h a v e i n t r o d u c e d a n d / o r conducted as a Branch, designed to encourage and enhance the activities of our members in spite of the pandemic. Live cast on Remote Dispute Resolution proceedings on 23rd April, 2020: The Branch hosted a Live cast on Re mo t e D i s p u t e Re s o l u t i o n proceedings on 23rd April, 2020 to share insights on the newly released “Guidance Note on Remote Dispute Resolution Proceedings” including how parties and arbitral tribunals s h o u l d h a n d l e t h e s e unprecedented circumstances as well as the IT and AI skills required t o c o n d u c t r e m o t e d i s p u t e resolution. The Facilitators of the Live cast included Chief Bayo Ojo SAN, C.Arb (the Immediate Past Trustee for Africa, CIArb), Mrs. Adedoyin R h o d e s -V i v o u r S A N , C . A r b (Immediate Past Chair, CIArb Nigeria Branch) and Mr. Omololu B a j u l a i y e ( D i g i t a l E x p e r t , U n i v e r s i t y L e c t u r e r, P h D Candidate at Tilburg University). The Live cast was moderated by Mr. Greg Nwakogo. The BigBlueButton Virtual Education Platform T h e B i g B l u e B u t t o n V i r t u a l Education Platform (BBB) was introduced to enable the remote d e l i v e r y o f c o u r s e s . T h i s compliments the introduction of the “CIArb Guidance note on R e m o t e D i s p u t e R e s o l u t i o n Proceedings” as our members are assured of continued virtual courses and on-line institutional and administrative support for the a d m i n i s t r a t i o n o f d i s p u t e s r e s o l u t i o n . I a m h a p p y t o announce that the Branch has resumed emote training on Zoom and the BigBlueButton Virtual Education Platform. The Branch has also successfully held a virtual Award Writing on 27th & 28th May, 2020 via Zoom with 7 (seven) participants and an Introduction to International Arbitration Course on 18 & 19 June 2020 via the BigBlueButton Virtual Education Platform with 30 (thirty) participants. W e i n t e n d t o u s e t h e BigBlueButton Platform for all our courses until the restriction on g a t h e r i n g s i s l i f t e d . I n t h e meantime, the Institute has begun the training and certification of faculty members on the use of the BBB Platform. Chairman’s Quarterly Reports The Nigeria Branch continues to conduct our normal trainings nd other activities in conjunction with notable Arbitration and ADR B o d i e s , I n s t i t u t i o n s a n d Professional bodies and firms such as the Lagos Court of Arbitration (LCA), the International Chamber of Commerce (Young rators) Forum, Maritime Arbitrators Association of Nigeria, Nigeria Bar Association, Babcock University etc. We also collaborated with the Firm of Steptoe & Johnson UK LP t o o r g a n i z e a r o u n d t a b l e discussion on Arbitration on the 19th Februar y, 2020 at the Radisson Blu Anchorage Hotel, Victoria Island, Lagos. Details of these activities are c o n t a i n e d i n t h e r e g u l a r Chairman’s Quarterly Reports. Lagos Pre-Vis Moot T h e B r a n h h a s b e e n v e r y s u p p o r t i v e o f t h e t e a m s representing Nigeria at the Willem C. Vis Moot scheduled to hold in April, 2020 in Vienna Austria. The maiden edition of the Lagos Pre- Moot competition took place on 27th Februar y 2020 at the Regional Centre for International Commercial Arbitration Lagos (RCICAL). The aim of the Pre-Vis Moot competition was to test the readiness of the students and the Universities to represent the country at the vis-moot. Nigeria was to be represented at the Vis-Moot by the University of L a g o s , O b a f e m i A w o l o w o U n i v e r s i t y a n d L a g o s S t a t e University. However, due to concerns over the COVID-19 pandemic, the organizers of the Willem C. Vis Moot announced the cancellation of the oral hearings in favour of online submissions. 2020 Annual Conference and Gala/Induction Nite With the Abuja Chapter of the CIArb winning the hosting rights for the 2020 CIArb Conference and Gala/Induction Nite, a 32 (thirty-two) member 2020 CIArb Conference Planning Committee (CPC) was inaugurated with Mr. Y. C. Maikyau, SAN, FCIArb as Chairman to organise the events scheduled for November 2020 in
Abuja. However, in view of the current COVID-19 pandemic and the possible continuation of the social distancing policy even after restrictions are lifted, the CPC is exploring the possibility of organizing a hybrid conference, which will have the elements of both a physical and virtual conference. Branch Elections In line with the Branch Model Ru l e s , E l e c t i o n s w e r e h e l d electronically on 8th April, 2020 to fill the existing vacancies on the Ececutive ommittee of the Nigeria Branch (Exco) and the following members were elected; (1) Mrs. Josephine Akinwunmi (2) Dr. Adeyemi Agbelusi (3) Dr. Tayo Bello (4) Mr. Ibifubara Berenibara and (5) Mr. Akin Omisade. At the inaugural meeting of the 020-2021 Executive Committee of the th Branch held on 16 April, 2020, Mrs. Yejide Osunkeye, FCIArb was elected as the Hon. Branch S e c r e t a r y, M r. A k i n w u n m i Omisade, FCIArb was elected as Hon. Treasurer, Dr. Adeyemi Agbelusi FCIArb was elected as Branch P.R.O and Mrs. Josephine Akinwunmi FCIArb was elected as Asst. Secretary. Appointment of Chairman and Vice Chairman of the Port Harcourt Chapter Following the resignation of Mrs. Florence Fiberesima, CIArb (now Honourable Justice Florence Fiberesima, MCIArb of the Rivers State Judiciary) as the Chair of the Port Harcourt Chapter, Mr. Tonye Krukrubo the then Vice Chairman has been appointed by the Branch as the Chairman of the Port Harcourt Chapter and Mr. Emeka Onyeka as the Vice Chairman of the Chapter. R e l a t i o n s h i p w i t h O t h e r African Countries Further to the mandate given to the Nigeria Branch Regional Representative to establish the presence of the CIArb in other African countries, the Branch Regional Representative, Mrs. Folashade Alli, FCIArb has opened dialogue with contacts in Ghana and Tanzania. The Branch has submitted proposals to our contacts for training of nterested candidates in both countries. The Souvenir Corner I am happy to invite our members to the Souvenir Corner at the Secretariat for the purchase of m e m b e r s h i p i t e m s s u c h a s membership wooden plaques (for your ffice walls), membership pins, face masks etc, all at reasonable prices. We intend to expand the variety of available items to include lapel pins, ties and scarfs in due course. Webinars To keep our members educated and up to date with urrent developments during this COVID- 19 pandemic a number of webinars on Arbitration have been held by the Branch and Chapters. They include · “Remote ADR: Feasibility, Challenges and Opportunities for Young ADR Enthusiasts” webinar organized by the CIArb Ibadan Chapter on 11th May 2020. Featured speakers at the webinar include Mr. Ben Giaretta, Chair, CIArb London Branch, Mr. Aled Davies, MediationAcademy.com, Mrs. Funmi Roberts, Funmi Roberts & Co. and Prince ateefFagbemi, SAN, Chair, CIArbI b a d a n C h a p t e r . I t w a s moderated by Mr. Lateef Yusuff.· “A Guide to Virtual Arbitration” th webinar held on 16 May, 2 0 2 0 . T h e w e b i n a r w a s organized by J-K Gadzama and Co. It eatured speakers such asProf. Paul Idornigie, SAN, Nigerian Institute of AdvancedLegal Studies, Mr. IsaiahBozimo, Broderick Bozimo & Co. Mr. Abayomi Okubote, African Arbitration Academy. It was moderated by Lamar Joe-Kyari-Gadzama. · Delos Dispute Resolution organized a TagTime webinar with Funke Adekoya SAN, Aelex, on “Damages and Costs: Can Fair Compensation Be Too Much?” which took place on th 27 May, 2020. It was cohosted by Dr. Kabir Duggal and Amanda Lee. · Port Harcourt Chapter webinar on “Arbitration: Navigating the Current Pandemic through th Technology” held on 12 June 2020. It featured speakers such as Mr. Adrian Cole, King & S p a l d i n g , U A E , M r s . M i a n n a n y a E s s i n S A N ,Principles Law Partnership,Nigeria, Prof. Oba Nsugbe, Q C , S A N , P u m p C o u r t Chambers, UK, Mr. Richard Mugisha, Trust Law Chambers, Rwanda and Mr. Brian Speers P r e s i d e n t o f t h e C o m m o n w e a l t h L a w e r s Association. The webinar was moderated by Mr. Tonye Krukrubo, the Chair of the Port Harcourt Chapter. Upcoming webinars include: · “KIAC Knowledge Sharing Session” webinar on Virtual A r b i t r a t i o n Pro c e e d i n g s : Positioning Africa to the Post C O V I D – 1 9 W o r l d . T h e speakers at the webinar will include Mr. Duncan Bagshaw, Howard Kennedy, London, Mr. Isaiah Bozimo, Broderick Bozimo & Co. Nigeria, Dr. Fidele Masengo, Secretary General IAC, Mrs. Rose Rameau. · Ibadan Chapter webinar on “The Great Gender Debate :Challenges and opportunities for women in ADR during this disrupted times”. It will be moderated by Mr. Lateef Yu s u f f a n d M s . B u k o l a Haastrup-Ashagidigbi and will feature speakers such as Lucy G r e e nwo o d , G r e e n w o o d A r b i t r a t i o n , U K , M r s . nd Olajumoke Ojo, 2 Vice Chair, C I A r b I b a d a n C h a p t e r, m a n d a L e e , S e y m o u r s
Solicitors, UK and MercyOkiro, Chair, YMG Kenya As at today, we have an active m e m b e r s h i p o f 1 , 3 5 0 ( o n e thousand, three hundred and fifty) out of a total trained membership of 3,282 (three thousand, two hundred and eighty two). Of the 1,350 (one thousand, three h u n d r e d a n d f i f t y ) a c t i v e members, only 535 (five hundred and thirty five) members have paid their membership subscription for 2020. I encourage our members being members f an international organization to pay their annual subscription fees. With this bloc membership, we will acquire the votes required to elect a Nigerian President of the CIArb in the very near future. Appointment of New DirectorGeneral:
In December 2019, we received the news that Anthony Abrahams was retiring as the Director General of CIArb after 8 (eight) years of service to the Institute. The Institute has now announced the appointment of Catherine Dixon as Director General to succeed Anthony Abrahams MCIArb with effect from 1st May, 2020. B e f o r e h e r a p p o i n t m e n t , Catherine Dixon spent time in chief executive roles at the Law Society of England and Wales, Askham B r y a n C o l l e e a n d N H S Resolution. Catherine also held senior leadership roles at the NSPCC and BUPA. She also served as Trustee and Non-Executive Director on a number of boards, including the Centre for Effective Dispute Resolution and she is
currently a Trustee of Stonewall. Catherine is a non-practicing solicitor and accredited mediator. Achievements by Members Our members continue to make strides in their respective fields. On Monday, 16th December, 2019, the 2nd Edition of the book“Nigerian Arbitration Law in Focus”co-authored by 2 (two) m e m b e r s o f o u r E x e c u t i v e Committee, Mrs .Obosa Akpata, C.Arb and Mrs. Sola Adegbonmire, C.Arb was launched at the Agip Hall, Muson Center, Onikan, Lagos. The book was originally authored by the Late Hon. Justice Ephraim Akpata (JSC) Rtd and the event was attended by many of our members. In addition, one of our own, Dr. Adewale Olawoyin SAN, FCIArb was appointed as the President of
the Lagos Court of Arbitration (LCA). We believe that his tenure will grow the existing relationship and coperation between the CIArb Nigeria and the LCA. We wish him all the best in his appointment. As reported earlier, the Chair of the
Port Harcourt Chapter, Mrs.Florence Fiberesima, MCIArb (now Honourable Justice Florence Fiberesima, MCIArb) was sworn in as a Judge of the River State High Court on 7th January, 2020. We wish her a very successful tenure as a Judge. Passing of MembersWe lost a prominent member of t h e B r a n c h C h i e f R i c h a r d Akinjide, SAN FCIArb. The sad event occurred on 21st April, 2020. He was an active and strong supporter of the Nigeria Branch and served as a member of its Training Faculty. May his gentle soul continue to rest in the bosom of the Lord. Amen Conclusion: I thank the Editor-in-Chief of this Journal, Dr. Agada Elachi and his team for this initiative of migrating to an E-Journal. I also thank the Executive Committee of the B r a n c h , S u b – C o m m i t t e e s , members and the Administrative Staff for their support towards the growth and development of the Branch. As the restriction on movement is g r a d u a l l y l i f t e d , t h e C I A r bappreciates the sacrifice made by the frontline health workers all over the world, to secure our lives while risking theirs. I enjoin our members to please keep safe and adhere to the advisory on OVID-19 from health care professionals. Olatunde Busari, SAN, C.Arb (Chair, Nigeria Branch) st 1 July 2020 COVID-19 pandemic Thas brought to the fore what most people in e m e r g i n g e c o n o m i e s particularly in some countries in sub-Africa have never really given a thought to – working from home. For a majority of Africans in the sub-Sahara, special dispensation is usually afforded to employees who work remotely on an exceptional b a s i s . i . e . i l l n e s o r c i r c u m s t a n c e s t h a t a r e extremely grave. There is no doubt that the ability to work from home has been mainly due to the widespread availability of constant electricity and the a va i l a b i l i t y o f c o n s i s t n t I n t e r n e t s e r v i c e . M o s t employers and employees are however unable to access the tools to work remotely as they do not possess the economic resources to do so. In the last couple of weeks, although sub-Sahara Africa seem to have avoided the worst impacts of the pandemic, our legal systems have effectively grounded to a halt. Most sub- Saharan Africans have been directed to stay in their homes by their various Governments. Sub-Saharan Africa is not alone in this fate but it appears that the impact on the administration of law and business in sub-Saharan Africa is disproportionately impacted as a result of these directions. Also most of the global workforce has been forced to adjust but we do not appear to have been able to bene have subscribed to a mobile service. The Internet in sub-Saharan A f r i c a i s l a r g e ly u s e d fo r communication purposes and is closely followed by online retail transactions as can e deduced from active social media usage. Among those who access the Internet on their mobile phone, 57% visit social networks, 39% use email, 38% listen to music or watch video, and 31% read news. Instant messaging is highly popular and used by 41% of consumers. When it comes to s o c i a l m e d i a p l a t f o r m s , F a c e b o o k c o n t i n u e s t o dominate. It remains the most used platform among both marketers and consumers; Instagram now has over 1 billion monthly active users–a 42.86% increase from 2017; As of Q1 of 2019, Twitter had about 330 million active users worldwide. LinkedIn has a completely d i ff e r e n t a u d i e n c e t y p e compared to other social media platforms, and is the largest professional network. Nigeria has a current estimated population of over 190 million people with approximately 84 million people (almost half the entire populace) under the age of 20 and with forecasts for this demography to account for at l e a s t 5 2 p e r c e n t o f t h e population, the demand for mobile phones, personal care products, electronics, fashion items and food is steadily on the rise. With those numbers in mind, it can be imagined the number of online con Justice Hannnah Okwengu of the Court of Appeal delivered 57 Rulings and Judgements of the c o u r t v i a v i d e o l i n k w i t h p r o m i s e t h a t t h e judgements/Rulings would be available for download 48 hours after. Also the High Courts in Kenya continue to hold sittings via video conferencing and Criminal Justice Administration is not halted as cases are conducted via video conference l i n ke d w i t h re m a n d e e s a t Kapsabet GK rison and ShimoLa Tewa Prison. On Friday March 20, 2020, the Chief Justice Brat Katureebe in line with the executive order by President Museveni of Uganda, suspended all court hearings for a period of 32days. The directions however made p r o v i s i o n s f o r u r g e n t proceedings via video link, judgement and rulings online via electronic mail. So in Kenya and Uganda, even though a stay at home order is in force, law and order has not be s u s p e n d e d a n d O D R h a s adequately
THE NEED FOR PERSUASIVE PRECEDENTS IN ARBITRATION AND DISPUTE RESOLUTION PRACTICE.
By Emelda Eko MCIArb. Bryan A. Garner, Black’s Law Diconary, Third Pocket Edion, at P. 553. Nicolas Beguin, the Rule of Precedent in Internaonal Arbitraon, Jusleer 5. Januar 2009, at P.2. Ibid Barton Legum, “Definion of Precedent” n Internaonal Arbitraon, ed. Emmanuel Gillard, Yas Banifatemi”; IAI Seminar (Paris-December 14, 2007, Juris Publishing Inc.) P. 6 Ibid; Pages 7 and 11 Ibid P. 8 With the steady growth of Arbitration cases in Nigeria and the Awards resulting from them, Parties, their Lawyers, the Arbitrators and even inquisitive third parties have a growing interest to receive information on earlier cases. This Article will focus on a few legal issues identied hereunder and discussed as follows: 1. The denition of Precedent, the concept of stare decisis and its sources; 2. The Implied Condentiality in an Arbitration Clause; 3. The need for consistency in commercial Arbitration cases in Nigeria or not; 4. Conclusion. The denition of “Precedent”, the concept of “stare decisis” and its sources: Precedent is dened as a decided case that provides a basis for determining later cases involving similar facts or issues. While the availability f precedents has various advantages, this article will concentrate on two. The rst is the ability of precedents to create study and research materials to be c o n s i d e r e d a s a g u i d e i n subsequent similar circumstances, towards the understanding of a legal issue and the reasoning behind these decisions. The second aspect is the creation of legal principles that will serve to decide later cases in which similar or analogous issues arise. The latter advantage is known as the rule of precedent or stare decisis, under which lower Courts as well as the Courts that rendered the decision must comply with these legal principles. In order to understand the denition of precedent from various perspectives especially the key players in arbitration, this Article will consider the meaning of Precedent from Counsel, Arbitrators and the Public’s point of view. C o u n s e l ‘ s p e r s p e c t i v e : A precedent is any decisionalauthority that is likely to affect the decision in the case at hand. This is p a t e n t l y a r e s u l t s – o r i e n t e d denition as Counsel tends to nd authorities that are likely to affect the arbitrator’s decision. Arbitrators’ Perspective: A precedent is any decisional authority that is likely to justify the arbitrators’ decision to the principal audience for that decision. Going by this denition, it is clear that an Arbitrators’ approach to precedents will be to nd useful authorities that justify his reasoning on a decision to the principal audience. Public’s Perspective: A precedent is any decisional authority in which the factual and legal issues are sufciently similar to the case at hand that the public reasonably expects the issues to be handled similarly. Sources of Precedent: 1. Publications: Some Arbitral Institutions permit the publication of extracts from an award subject to the agreement of arties. When this occurs, the materials are made available to the public as nonbinding precedent. Article 34 (5) of the UNCITRAL allows for the publication of an award where the parties in that arbitration consent to same. Similarly, ection 26(4) of theArbitration and Conciliation Act states that a copy of an award, made and signed by the arbitrators shall be delivered to each party. Although, the Arbitration and C o n c i l i a t i o n A c t d o e s n o t expressly permit the publication of an award, in practice, the consent of the parties must be sought. The ICC publish extracts of arbitral awards giving insights into the r e a s o n i n g o f i n t e r n a t i o n a l arbitrators on the terpretatio and application of contractual clauses, international conventions and the law of international trade. 2. Appeals and Enforcement: Information about the arbitral process and awards become publicly available when awards are hallenged in the Courts. It is a prerequisite that any person relying on an arbitral award or applying for its enforcement must supply the duly authenticated original award or a duly certied copy, the original arbitration agreement or the duly certied copy. In so doing, the award itself becomes a public record in the custody of the Court. Although, the Court is the appropriate mechanism to enforce an arbitral award, it is barred from delving into the award in its ntirety. 3. Text Books, Write ups and Articles: Precedents can be found in text books, write ups or even articles written by some arbitration practitioners. These materials are developed based on the norms and ractices of arbitration hat have developed over time. They are produced by those with experience in arbitration practice who understand ‘how things are done’ and in being published and adopted come to codify that practice to some extent. In this way, they are a creature of precedent having been created based on ‘what has gone before’ and seeking to shape future practice. Arbitration text books often report on how easy or difcult it is to persuade a tribunal to make a certain order. The texts have no ofcial authority but it shapes the way practitioners and tribunals behave. 4. Soft Laws: In Arbitration, guidelines may be published and developed based on the norms and the practices of arbitration. These guidelines can be dopted by agreement to form part of the arbitral rules or as a means of persuading a tribunal to a point of view. The best example is the International Bar Association (IBA) Guidelines on the Taking of E v i d e n c e i n i n t e r n a t i o n a l arbitration (the IBA Guidelines) which was commonly adopted as a means of leveling the playing eld f o r p a r t i e s f r o m d i f f e r e n t jurisdictions and setting out clearly for all involved, how theevidence in arbitration will be handled. 5. Legal Press: The Legal Press, particularly specialized arbitration publications often provide insight into ‘what has been done before’ in arbitration across the globe. These reports my not contain the level of detail on the tribunal’s reasoning that would be available from, say the ICC, but often one can learn about tribunals, dissents and attitudes on key issues. The legal press is also a key resource for l e a r n i n g a b o u t p r e v i o u s appointments of arbitrators and decisions they have made. The Implied Condentiality in an Arbitration Clause: The condentiality of arbitral proceedings has traditionally been taken to be one of the important advantages of arbitration. Unlike proceedings in Court, arbitration proceedings exclude third parties and the public generally. The condentiality rule in arbitration was founded on the privacy of arbitral proceedings and the implied condential terms of arbitration arises from the nature of the contract binding the parties. The arbitration contract itself is strictly between the parties to the exclusion of others and therefore, the resolution of the dispute has the potential of being a condential process. It is important for parties i n a c o n t r a c t t o i n c l u d e condentiality provisions in their agreement to arbitrate; however, the question that will arise is whether an implied condentiality can be educed. T h e g e n e r a l p r i n c i p l e o f condentiality in arbitrationsunder English law, which might be said to represent the classical view, was spelt out by the English Court of Appeal in Dolling-Baker vs. M e r re t t . S u b s e q u e n t l y, i n Hassneh Insurance Co. of Israel vs. Mew, the court recognized the existence of an implied duty of condentiality as the natural extension of the undoubted privacy of the hearing in an i n t e r n a t i o n a l c o m m e r c i a l arbitration. U n d e r t h e A r b i t r a t i o n a n d Conciliation Act, the complete, unabridged publication of awards is contrary to the traditional rule of privacy and condentiality of arbitration. Where parties to an agreement in Nigeria, have failed t o e x p r e s s l y i n c l u d e t h e c o n d e n t i a l i t y p r o v i s i o n s including the publication of the award arising from the arbitration, the Arbitration and Conciliation
Act which is primarily fashioned from the 1985 UNCITRAL Model Law on International Commercial Arbitration incorporated the traditional implied condentiality rule. An arbitration agreement is a private contractual agreement to arbitrate between parties. Where the said arbitration agreement is silent on the publication of an award, an arbitrator can infer condentiality and privacy of reference drawing his powers from the provisions of the Arbitration and Conciliation Act. The need for consistency in commercial Arbitration cases in Nigeria or not: Precedent has been dened as a series of consistent decisions on a given question of law. To be deemed as precedents, awards must also be consistent with each other. In other words, one may be able to infer from different arbitral awards the same legal principles. Under the Nigerian Judicial system where Courts are in a hierarchy, the lower courts are bound by the decision of the higher
c o u r t . I n o t h e r w o r d s f o r consistency to be maintained in our judicial system, where a point or principle of law has once been ofcially decided or settled by the ruling of a competent court in a case in which it is irectly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those bound to follow its adjudication, unless it be for urgent reasons and in exceptional cases. See he cases of Ardo vs. Nyako ; AG Lagos State vs. Eko Hotels LTD & Anor. The Supreme Court was also well guided to explain the circumstances at which it would not be important to rely on the doctrine of stare decisis to maintain nsistency by statingthus: ”Facts have no views. A Judgment should always be read in light of the facts on which the case was decided. The rules of stare decisis do not allow Courts to apply the ratio of a case across the board and with little regard to the facts of the case before them”. Consistency entails a control mechanism as the judicial system in Nigeria. If no full legal control were possible, consistency could n o t b e e n s u r e d . T h e r e f o r e
consistency requires the arbitral institution or a superior panel be empowered to fully review the ndings contained in the awards. The question that then arises is whether and to what extent the earlier decisions in arbitration are relevant or have to be taken into account by the tribunal deciding the present? Arbitral precedents are merely persuasive suggestions and must not be strictly followed. Where arbitrators are not bound by t h e d e c i s i o n s o f e a r l i e r proceedings, it is therefore likely that they will not be followed. Although the arbitrator may be well advised by an earlier decision, he is not strictly bound by them. The effect is that, arbitration precedents are non-binding. Conclusion It is clear that arbitral precedents are available, therefore one of the highlighted advantages that precedents have the ability to create study and research materials to be considered as a guide in subsequent similar ircumstances,towards the understanding of a legal issue and the reasoning behind these decisions is settled. The second aspect which talks on the ability of precedent to create a consistency in making legal principles that will serve to decide later cases in which similar or analogous issues arise cannot successfully operate in Nigeria. H o w e v e r , t h e c o n c e p t o f precedents can be approached from a different perspective, namely the concept of Persuasive Precedent. In summary, Persuasive Precedent can be dened as de facto tendency for an international arbitrator to accept what has been consistently decided in a signicant number of past arbitral decisions. It would therefore be isguided to describe the concept of precedent in a r b i t r a t i o n f r o m t h e s a m e perspective as that applied to court.
INCLUDING ARBITRATION CLAUSES IN CONTRACTS OF EMPLOYMENT IN NIGERIA: A CASE OF CARRYING COAL TO NEWCASTLE?
By Nelson Chilotam Onuoha, ACIArb (UK) a r b i t r a t i o n i n l i g h t o f t h e provisions of the Nigerian Constitution. 2.0 Appellate Jurisdiction of the National Industrial Court of Nigeria over Arbitral Awards on Employment/Labour disputes and its Implications I n N i g e r i a , j u r i s d i c t i o n (whether original or appellate) is conferred on a court or tribunal by the Nigerian Constitution or some other statute. It is against this background that the Nigerian Constitution (Third Alteration) Act, 2010 was passed into law on March 4, 2011, effecting i n t r o d u c e d b y t h e T h i r d Alteration Act which are relevant to arbitration in Nigeria are Sections 254C (3) and (4) of the Nigerian Constitution (as amended). While Section 254C(3) provides that the NICN may establish an Alternative Dispute Resolution Centre in respect of Labour/Employment disputes, Section 254C(4) p r o v i d e s t h a t t h e N I C N exercises jurisdiction over the enforcement of arbitral awards m a d e i n r e s p e c t o f labour/employment related disputes. However, the critical provision to 1.0 Background In a bid to quickly resolve and determine employment claims, some employers in Nigeria have taken the initiative of including arbitration clauses in contracts of employment designating arbitration as the sole means of resolving any dispute arising from such contracts, and that the decision of the arbitrator shall be nal, binding and conclusive of that dispute. This epiphany could not have come at a better time as most employers, especially corporate bodies, have always disliked the i d e a o f h a v i n g employment/labour claims drag on in court for years. Most corporate bodies would also prefer that certain information remain condential and not
exposed to public access by litigation, hence the preferred choice of arbitration as a faster and more discreet means of resolving employment disputes. In Nigeria, it remains the position of the Courts that where the award to be made in
arbitration is agreed by the parties as nal and binding on them, no court shall have the powers to sit on appeal over that award. A court can only hear and determine applications to have the award set aside for misconduct of the rbitrator(s) o r f o r b e i n g i m p r o p e r l y procured. A court cannot review, reassess or vary the ndings or conclusions of the arbitrator in making the award. The only discretion the court can exercise over an award is to determine whether or not the arbitrator applied proper methods in arriving at the award. This position is apt for commercial arbitration but does not appear to be applicable to employment/labour disputes’ alterations to Sections 243, 254, 287, 289, 292, 294, 316 and 318 o f t h e 1 9 9 9 N i g e r i a n Constitution, establishing the National Industrial Court of Nigeria (NICN) and conferring it with exclusive original j u r i s d i c t i o n o v e r labour/employment elated disputes inter alia. The new provisions of the Constitution this discourse is the proviso to Section 254C(3) of the Nigerian Constitution (as amended) which confers the NICN with appellate jurisdiction to hear and determine appeals against any award made by an arbitral tribunal in respect of l a b o u r / e m p l o y m e n t r e l a t e d disputes or any other matter over which the NICN exercises original jurisdiction. For clarity and ease of reference, ection 254C (3) of the N i g e r i a n C o n s t i t u t i o n ( a s amended) is reproduced hereunder as follows: “(3) The National Industrial court may establish an Alternative Dispute Resolution Centre within the Court premises on matters which juris iction is conferred on the Court by this Constitution or any Act or Law: Provided that nothing in this subsection shall preclude the National Industrial Court from ntertaining and exercising a p p e l l a t e a n d s p e r v i s o r y jurisdiction over an arbitral t r i b u n a l o r c o m m i s s i o n , administrative body, or board of inquiry in respect of any matter that the National Industrial Court has jurisdiction to entertain or any other matter as may be prescribed by an Act of National Assembly or any Law in force in any part of the Federation. (Underlined for emphasis) It is clear from the above provision that the Nigerian Constitution (as amended) has conferred the NICN with the powers to sit on appeal over any arbitral award made in respect of labour/employment disputes or any other subject matter within the NICN’s exclusive original jurisdiction. The NICN has the constitutional powers to review
the merits or otherwise of the ndings and/or conclusions reached by an arbitrator(s) in m a k i n g a n a w a r d o v e r a labour/employment dispute. Inevitably, the right to appeal an arbitral award made over a labour/employment ispute d i s p l a c e s o r d e f e a t s t h e comparative advantages of speed a n d c o n d e n t i a l i t y w h i c h arbitration generally bears over litigation. This is because even after the dispute is resolved by arbitration, an appeal to the NICN and a further appeal to the Court of Appeal protracts the dispute and brings all facts and documents relating to the dispute to public access. Even more, these appeals would denitely bring about more cost on the parties in addition to the cost they bore during arbitration. Inexorably, the perceived reasons or benets for including an arbitration clause in a contract of employment and ultimately engaging arbitration instead of litigation to resolve employment disputes, are completely undone by the right of either party to the arbitration to appeal the award to the NICN and to further appeal the NICN’s appellate decision to the Court of Appeal. Given the above, one is left
wondering whether there is any need engaging arbitration to resolve an employment/labour dispute in Nigeria. It would appear that it is perhaps a faster, more cost-effective and neater process to litigate employment disputes directly at the NICN instead of engaging arbitration, as appeals against the decision of the NICN on employment/labour disputes can only be made to the Court of Appeal. The decision of the Court of Appeal thereon is nal and conclusive, as no party would havea right of further appeal to the Supreme Court. Recommendation Many Jurists and Arbitrators have proposed that in order to circumvent the constitutional right of appeal against arbitral awards made in respect of employment/labour disputes, parties should include in the arbitration clause that the award shall not be subject to appeal. Including the foregoing in an arbitration clause presupposes that parties have agreed to waive their onstitutional right to appeal the award and by ultimate implication divested the NICN of jurisdiction to hear and determine any appeal against the award. H o w e v e r , i t i s h u m b l y submitted that this strategy is untenable in law. It is the settled position of Nigerian Law that p a r t i e s c a n n o t b y t h e i r agreement confer or divest a Court of original or appellate jurisdiction. It is also the settled position of Nigerian Law that t h e p r o v i s o n s o f t h e Constitution are supreme and binding on all persons and a u t h o r i t i e s . W h e r e t h e Constitution has conferred certain powers on any Court or Tribunal, no person, agreement or authority can oust such powers. Thus, no provision in an arbitration clause can stop the N I C N f r o m e x e r c i s i n g i t s c o n s t i t u t i o n a l l y c o n f e r r e d appellate jurisdiction over arbitral awards made in respect of labour/employment.It is rather suggested that in order to obviate the right to appeal the arbitral award, parties should nominate a seat of arbitration that is not Nigeria or any other country that provides for the right to appeal arbitral awards made in respect of labour/employment disputes. The ‘seat of arbitration’ is the particular country (system of laws) with the responsibility to administer and control the arbitration as opposed to the ‘venue of arbitration’ which simply refers to the physical location where the arbitration will be conducted. Thus, where parties choose a seat of arbitration that is not Nigeria, the provisions of the Nigerian Constitution, including provisions conferring the NICN with appellate Jurisdiction over arbitral awards made in respect of labour/employment disputes, will not apply to the arbitration or the resultant award even if the venue of the arbitration is in Nigeria.Unless the above step is taken, it would appear that including an arbitration clause in a contract of employment, and ultimately engaging arbitration instead of litigation to resolve employment disputes in Nigeria, is as needless as carrying coal to Newcastle.
THE PITFALL OF JUDICIALIZATION OF ARBITRAL PROCESS IN NIGERIA
By Muhammad Doko Idris
Arbitration is a part of the ADR process and the most preferred method of dispute resolution mechanism by both local and international t r a d i n g c o m m u n i t i e s . T h e available statistics that support this assertion can be attested to by the proliferation of so many arbitral institutions across the globe. However, there is a growing concern that the arbitral process is being judicialized partly on account of intervention by court and the increasing Formalization of arbitral procedure that introduces cumbersome processes that elongate time, increase cost and entrench technicalities which are the attributes of litigation. Although it has been argued that arbitral proceedings are not
necessarily expeditious if the applicable laws and rules of proceedings are over simplify. It is however important to note that the incessant judicial intervention, particularly as it relates to enforcement of award defeats the purpose of arbitration, which is t i m e a n d c o s t – e f c i e n c y. In the same manner, lawyer’s involvement in arbitration can been counterproductive. This is because some of them approach or direct arbitration proceedings like litigation. To them arbitrator is a judge and the other party is an opponent who must be brought or worn down by all means. The consequences of this, is that arbitration is unnecessarilybogged down by technicalities and b o t t l e n e c k s o f l i t i g a t i o n . Arbitration as a judicial process. Arbitration is an extension of the judicial process and also a product of the private justice system that emanates from contract. This presupposes that party autonomy is the heart and soul of arbitration. In essence, arbitration is an indispensable tool for socioeconomic development. This is b e c a u s e v i r t u a l l y e v e r y commercial venture particularly of international dimension is initiated
by means of written contract where party’s obligations, duties and rights are well spelt out. These o b l i g a t i o n s a l b e i t e n t e r e d voluntarily represent wishes of the parties and are judged by them in the event of any dispute. Orojo and Ajomo lend their voices in the following words: “The resolution of commercial disputes is obviously a very crucial aspect of the operation of the national economy and of the judicial system” Arbitration and legitimacy of judicial intervention in Nigeria. A s r i g h t l y s t a t e d e a r l i e r, arbitration is an extension of judicial process because the contractual agreement which provides reference for arbitration in the event of disputes by the
p a r t i e s i s r e c o g n i z e d a n d enforceable by the Court of law. Section 1(2) of Arbitration and Conciliation Act provides: “Any reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if such contract is in writing and the reference is such as to make that clause part of the contract.” Invariably, where parties freely and voluntarily enter into an agreement with arbitration clause, it is not their intention that dispute should be resolved by courts. Even the Courts have established the jurisprudent that they do not interfere in the agreement of the parties but merely interpret and enforce their intention. In other words, the Court respects the sanctity of the contracts. In the words of Oputa JSC of blessed memory, in the Sonnar (Nigeria) L t d v P a r t e n r e e d r i M S Nordwind owners of the ship M V. Nordwind “There is no doubt that parties to acontract re allowed, within the law, to regulate their rights and their liabilities themselves. Courts do not make contracts for parties. It cannot be emphasized enough to say that Courts will only give effect to the intention of the parties as
expressed in and by their contract.” However, in reality, and by the provisions of the law, arbitration relies heavily on coercive power of the Court which is sometimes necessary for parties to realize its benets. Sections 2, 4, 5, 7, 23, 29(1) & (3), 30 & 31 of ACA allows the court to intervene in the arbitration process in Nigeria. The instances of these interventions a r e : ( i ) R e v o c a t i o n o f t h e arbitration agreement, (ii) Stay of court proceedings, (iii) Establishment of an arbitral tribunal, (iv) Compelling the attendance of a witness to testify or produce a document, or producing a prisoner to be examined by an arbitral tribunal. (v) Setting aside of a domestic award (vi) Setting asideof an award or the removal of an arbitrator for misconduct. (vii) Recognition and enforcement of domestic awards. See section 34 ACA. The inviolability of this section was tested in the case of Bendex Eng. v Efcient Pet. (Nig.) In that case the Court of Appeal declared the provision of the section 34 an as ouster clause because it encroached on the right of appeal of individuals as enshrined in the Constitution. The question that readily comes to mind is that with the Nigerian tradition of rigid common law reasoning, will there be any judicial pronouncement that will advance the cause of arbitration in N i g e r i a ? A l t h o u g h c e r t a i n decisions from the courts of the land seem to ssuage this feeling,the course is still not clear as the e x i s t i n g l a w s r e g u l a t i n g arbitration create avenues for employment of legal technicalities in arbitration proceedings The lawyer as arbitrator The Nigeria lawyer is trained in the art of litigation and had the mastery of its techniques. The lawyer’s trade is to participate in the resolution of dispute. It earns the sobriquet ‘minister in the temple of justice’ because the law and the society see the role of lawyer as such. Although section 7 ACA does not provide for any p a r t i c u l a r p r o f e s s i o n a l requirement to be met before a person can be appointed an arbitrator. To that extent, lawyers are not barred to act as arbitrators. However, since the arbitration proceedings mimic or have the trappings of litigation, lawyers have become the special bride to look for. For this purpose, not only do they become arbitrators but c o u n s e l i n t h e a r b i t r a t i o n proceedings. In fact, recent statistics shows that they dominate a r b i t r a l i n s t i t u t i o n s a n d proceedings across the landscape and it is therefore convenient for them to dictate the pace. It is unfortunate that some lawyers brought their litigious mindsets to the arbitration proceeding which is inimical to an efcient dispute resolution process. For example, in the course of proceedings, they deploy the panoply of civil law
procedure which they believe is necessary to protect their client interest(s). These tactics deployed by theses lawyers which include the traditional delaying techniques such as requests for particulars, interrogatories, disputes about disclosure of documents and the formal steps of examination in chief, cross-examination and reexamination etc encourage j u d i c i a l i z a t i o n o f a r b i t r a l proceedings or process in Nigeria. The pitfall of judicialization of arbitral process Trade and commerce which stimulate economic activities can only thrive under a regime that guarantee sensible balance between legal or juridical order and the arbitral process. This is because arbitration as a process s meant to positively inuence economic development. The signicance of the forgoing is that the major reason for giving the parties or investors the needed condence in the commercial affairs of countries is to insulate the arbitral process from partiality and undue judicial interference. In t h e w o r l d o f c o m m e r c e o r business, parties prefer to settle their disputes or differences privately and in a manner that is accustomed to their trade without causing harm to their future business relationship. Therefore, judicial intervention that have metamorphose into judicial control and the introduction of cumbersome procedure will certainly detract from the existing philosophy upon which he arbitration stands. It will also have the effect of strangulating it growth and development in the country. The argument that the introduction of new procedural rules which unfortunately adds to the cumbersomeness of the arbitral process were meant to improve the decision making in multifaceted and complicated disputes was seriously deprecated on the j u s t i c a t i o n t h a t i t w o u l d encourage apathy and cynicism. Private dispute resolution should depict simplicity and not be legalistic. The future of arbitration in Nigeria. T h e f u t u r e o f c o m m e r c i a l arbitration in Nigeria is blurry or at worst can be described as bleak. Preliminary survey of critics and commentators alike suggest that the commercial arbitration regime in Nigeria is excessively rigid, complex and cumbersome. This criticism can hardly be faulted. It is clear that lawyers and judges dominates the arbitral landscape. The attitude of such arbitral convocation is predictable. Some of these lawyers and judges entrenched litigation culture in arbitral process. To wit, what characterizes the arbitral process where lawyers are the active players is, acceptance of lengthy briefs and adoption of formal proceedings that produces awards that resemble detailed common law decisions, and are subject to cost and delay and become recipe for judiciary review. A g a i n t h e s i n g l e p i e c e o f
l e g i s l a t i o n t h a t r e g u l a t e s commercial arbitration in Nigeria has been in existence for more than three decades and has become crusty and rusty. In other to further develop the efciency of arbitration, it is uggested that the most recent UNCITRAL model law rules of 2013, should be adopted with adaptation to Nigeria business environment. Although there has been extensive work done on Nigeria arbitration law which has been developed into a bill urrently undergoing the process of becoming law in the National Assembly. It is hope that when the new law come on board it will signicantly improve the practice of arbitration in Nigeria. Conclusion The biggest problem in arbitration
is delay and inefciency due to incessant judicial intervention. The way forward in this wise is to remove those outmoded rules and procedure, delimit the intervention of court in arbitral process; educate the lawyers and the judge on ow arbitration should differ from civil litigation and enlighten the end users of arbitration of the need to deemphasize seeking formal and protracted proceeding in the pursuit of legitimacy and certainty.
HINTS ON ARBITRATION IN THECONSTRUCTION INDUSTRY IN NIGER IA
by Emmanuel Dike1
1.1. Construction arbitration is one of the oldest and commonest forms o f a r b i t r a t i o n i n N i g e r i a . Arbitration is very popular in the construction industry because the chances of disputes arising from construction contracts are higher than many other contracts2 1.2. Construction arbitration may be described as the art and practice of blending the knowledge and practice skills of an arbitrator; with the application of the knowledge of the operations of contracts and regulations applicable in the construction industry; in order to settle disputes arising from c o n s t r u c t i o n c o n t r a c t s b y arbitration, efciently. 2.0. Nature of Construction Contracts:
2.1. A construction contract is a contract in which one party (the Contractor), undertakes to carry out works for another party (the Employer/Client); involving the erection, alteration, repair or demolition of buildings or other structures on land3. 2.2. Such contracts are usually referred to as building contracts; where they relate to building; and civil engineering contract where t h e y r e l a t e t o w o r k o f infrastructure; such as roads, bridges, harbours and other similar works. 3.0. Persons Involved in the C o n d u c t o f C o n s t r u c t i o n Arbitration in Nigeria. 3.1. The construction arbitration space in Nigeria is dominated by p r o f e s s i o n a l s i n t h e b u i l t environment, especially Quantity S u r v e y o r s , A r c h i t e c t s a n d Engineers. These are what could be termed as “rst responders”; in the event of disputes arising from t h e p e r f o r m a n c e o f a n y construction contract; because they are either, the contract administrators, project managers, c o n s t r u c t i o n m a n a g e r s o r supervisors. 3.2. Lawyers who are arbitrators; are making signicant attempt to participate in the numerous arbitration work arising from construction projects. In order to fully participate in this type of a r b i t r a t i o n , a m o d i c u m o f knowledge and subject-mattercompetence skills-set on the o p e r a t i o n o f c o n s t r u c t i o n contracts, from letter of award s t a g e t o c o m m i s s i o n i n g i s required.3.3. The Institute of Construction Industry Arbitrators (Formerly Society of Construction Industry Arbitrators) offers trainings in various construction arbitration practice acquisition skills. 3.4. Such trainings include; subject-matter competence skills t r a i n i n g f o r e x p e r i e n c e d arbitrators, who may be admitted to Fellow status of the Institute after successfully completing the training; membership entry training for those without much experience in arbitration; and monthly arbitration clinics together with Fellow upgrade course for existing members. 4.0. How Construction Disputes Arise 4.1. In a typical construction dispute, issues of cost, design, ( w h e t h e r a r c h i t e c t u r a l o r engineering), procurement and construction; are closely tied t o g e t h e r. A b a s i c b o d y o f knowledge that cuts across these issues is required by a legal practitioner faced with the challenges of issues arising from construction contract; in order to deal with them effectively 4.2 A glance at some of the major cases that have proceeded from construction arbitration; would reveal that basic knowledge of construction issues is a necessity towards prosecuting either litigation or arbitration proceeding a r i s i n g f r o m c o n s t r u c t i o n contracts. 4.3.In Obembe vs Wemabod E s t a t e s L t d 4 ; a c o n s u l t i n g engineer was engaged to supervise the construction of a building. The conditions of engagement were governed by a booklet published by the Association of Consulting Engineers in London. 4.4.Disagreement arose about the quality of steel recommended by the consulting engineer and his appointment was terminated. Issues arising from this simple transaction include; fees for structural and civil works, costs of resident supervision by resident engineers; and scale of fees in the Association’s booklet; as well as the arbitration clause in the booklet incorporated by reference. 4 . 5 . I n K a n o S t a t e U r b a n Development Board vs Fanz
Construction Co. Ltd5; a breach of the construction contract threw up the following issues; (i) Value of unpaid certicates. (ii) Fluctuation claims. (iii) Variation claims ( i v ) P r o v i s i o n a l c l a i m o n uctuation on materials used on site for period not covered by variation. 4.6. In Taylor Woodrow of Nigeria Ltd vs S.E GMBH6; the dispute relates to the construction of a hospital in Minna; although the issue resolved by the arbitrator wasa breach of contract due to the non opening of letters of credit by the Appellant in favour of the Respondent. 4.7.In City Engineering Nig. Ltd vs Federal Housing Authority7; the issue is breach of contract arising from building housing units in estac Town Lagos. 4.8.The common features in all the cases are; (I) there were frequent use of industry terms and practice as a matter of course. (ii) The contracts are either specialized or there were presence of standard form contracts. (iii) The frequent resort to arbitration. (iv) The arbitrators were mainly Lawyers (v) Counsel to the parties were Lawyers. 4.9. It is true that Lawyers are not trained to be construction men. But, if Lawyers must continue to
enjoy the condence of theirclients; there is an imminent need to understand the business of their clients. 4.10. In the life cycle of a typical construction project; there is u s u a l l y a m u l t i p l i c i t y o f documents forming a single contract. Each of the documents carries legal obligations; for instance invitation to bids and t e n d e r d o c u m e n t s , b i l l o f quantities and preliminaries, letter of award and agreement, drawings and specications, conditions of contract; among others. So it may not be possible to have the entire construction contract terms and conditions embodied in a single document. 4.11. Similarly; in a lump sum contract; that is a contract that ordinarily should not permit any variation; the bill of quantities may provide for provisional sum at the same time; especially for works in the substructure. An argument that the contract does not permit variation may not succeed. 4.12. In an EPC (Engineering, Procurement and Construction), disruptions and delays may still arise; because of wrong use of contract forms or alterations leading to an isolated hybrid. .In conclusion, I wish to thank the Chairman of CIArb (Nigeria
Branch) the Executive Council and in particular Mrs Sola Adegbomire, for extending the invitation to speak and my fellow CIArb (Nigeria Branch) members for granting me audience at in meeting. Thank you for listening. Emmanuel Dike Esq, LLM, BL FSCIArb DICArb(London), FCIArb(London) Dispute Board Adjudicator Emmanuel is a Senior Partner in Jasmine Advocates. A rm of Legal Practitioners, Arbitrators a n d C o n s t r u c t i o n L a w Consultants. He is a Lawyer, an
Arbitrator and other Alternative Dispute Resolution Practitioner; including being trained in dispute a d j u d i c a t i o n b o a r d a n d construction claims in FIDIC contracts. He is the Secretary General, Institute of Construction Industry Arbitrators; Chairman Society of Construction Law Nigeria; Alumnus of Lalive/UNITAR (Geneva) course on investment arbitration; and GeorgeTown University/International Law Institute course on investor-state arbitration. Emmanuel was also the pioneer General Counsel at the Regional C e n t e r f o r I n t e r n a t i o n a l Commercial Arbitration Lagos. He has frequently acted as Arbitrator, Dispute Adjudication Board member, Counsel and Consultant in several construction and engineering disputes in arbitral, dispute board and litigation proceedings.
DATA PROTECTION AND CONFIDENTIALITY IN REMOTE PROCEEDINGS
Th e p r o t e c o n a n d confidenality of pares, c a s e i n f o r m a o n a n d a r b i t r a l p r o c e e d i n g s i s fundamental to the advent and r i s e o f a r b i t r a o n . T h e s e disncve features should never be sacrificed on the bed of expediency or our current reality of social distancing and rising online communicaon. However, the increasing dependence on d i g i t a l r e c o r d s a n d o n l i n e interacons create significantcyber security vulnerabilies. The recent increase in pervasive cyber threats makes clear that one of the hallmarks of arbitraon (confidentiality can easily be at risk when using technology plaorms. This begs the need for intenonal strategies that should be implemented for its protecon. Therefore, in order to achieve a successful relaonship between technology and arbitraon, data security and privacy concerns should be assuaged. proceedings and its efficacy in arbitraon vis-à-vis the tradional i n – p e r s o n h e a r i n g s a n d proceedings. This arcle delves into essenal tasks that should be undertaken by key stakeholders of arbitraon to protect data and preserve confidenality so as
ensure successful and enforceable outcomes. Praccal stepsiii on how t o i d e n f y a n d p r o t e c t confidenal/sensive data, detect and respond to electronic data breaches as well as recover informaon lost or corrupted would be explored. In addion, retenon and destrucon polices, cerficate of compliance with informaon security measures, as well as guidance on how to preserve the confidenality and p r i v a c y o f t h e p a r e s a n d proceedings would be examined.organizaons processing personal data to implement informaon security measuresi v . Remote proceedings typically favour the use of videoconferencing, cloudb a s e d s t o r a g e , a r fi c i a l intelligence, virtual earing rooms and related technologies. These technologies which envisage digital transmission, use and s t o ra g e o f i n fo r m a o n a re however vulnerable to electronic data breaches. Electronic data breaches or cyber-aacks have
taken diverse forms, from hacking o f v i r t u a l m e e n g s t o u n a u t h o r i ze d / i l l i c i t a c c e s s , transfer or use of case-related informaon by hackers. The p o s s i b l e c o n s e q u e n c e s o f successful cyber aacks include: • Out-of-pocket expenses for f o r e n s i c i n v e s g a t o r s t o idenfy type and extent of aack and legal advice to migate liability; • economic loss to individuals whose commercial informaon or personal data has been compromised; • loss of integrity of data or quesons about the reliability and accuracy of data; • unavailability of data, networks, plaorms or websites due to d i s r u p o n c a u s e d b y t h e security breach; • regulatory liability and penales imposed by authories; • damages awarded in civil claims; and • r e p u t a o n a l d a m a g e t o arbitraon and its stakeholders. Given the potenal risk and consequence of cyberaacks, comprehensive data protecon and informaon security policies should be formulated for remote proceedings. These policies should guide parcipants on the following: • The idenficaon of confidenal informaon (Informaon) • The rotecon of the exchange, use and storage of Informaon • The period recommended for retenon, and me frame for destrucon, of arbitraonrelated data • Confirmaon of compliance w i t h d a ta p ro te c o n a n d confidenality licies • Tools to detect cyber security incidents • Response to the security breach which includes noficaon and migaon • Recovery of lost, deleted or corrupted Informaon. and other stakeholders, there are
basic security measures that can be implemented by custodians of arbitraon-related informaon. 1.12 The basic security measures may include access controls, communicaon security and encrypon to secure the exchange and transmission of arbitraonrelated informaon. 1 . 1 3 A c c e s s c o n t r o l s t o informaon should be properly guarded with encrypon and should include the control of user a c c o u n t s b y u l i z i n g t h e requirement for strong and complex passwords, biometric controls and/or mul-factor authencaon especially when a shared third party plaorm is used to host and access arbitraonrelated data. 1.14 Passwords should be based on unique passphrases, at least 8 characters long with lowercase, uppercase leers and a symbol, which is easily remembered. In addion, common diconary words, past passwords, repeve or sequenal characters and context-specific words should be a v o i d e d . C h a n g e s t o t h e passwords at set intervals should also be done.The various factors that may necessitate this modificaon includes changes in the circumstances of the case, changes in the qualificaon of confidenal informaon and c h a n g e s i n a p p l i c a b l e l a w, i n s t u o n a l p r o t o c o l s o r technological developments. Any m o d i fi c a o n t o t h e d a t a protecon policies s h o u l d b e s u b j e c t t o p r i o r
noficaon or agreement of the pares. recoverably by forensic tools. For instance, informaon in the trash fo l d e r o f e m a i l s s h o u l d b e e m p e d a n d p e r m a n e n t l y deleted. 1.27 Custodians of arbitraonrelated
informaon should also be obligated to confirm in wring that they had complied with these policies by retaining the data in a secure way or destroying such informaon completely and securely. locaon of data. Cybersecurity
risk insurance should also be considered to cushion the impact of a security breach. 1.35 The migaon of the incident c a n i n c l u d e s u s p e n s i o n o f proceedings unl the cyber risk is addressed, use of computer forensics to idenfy the threats and alternaves to recover informaon as well as the use of c r y p t o g r a p h y t o p r o t e c t uncompromised documents from unauthorized persons. 1.36 Related costs may also be allocated among the pares and the tribunal may impose sancons on the party/pares that enabled such breach. The sancons may b e p re m i s e d o n re g u l ato r y liability, liability in contract ( b r e a c h o f a g r e e d p o l i c i e s / c o n t r a c t o n d a t a p r o t e c o n ) , p r o f e s s i o n a l malpracce or negligence (breach of duty of confidenality). Recovery of Informan e ‘ s n e t w o r k s h o u l d b e aintained so that if one’s network is compromised, there would be an uncompromised back-up of the network data. 1.40 These back-up systems become incredibly useful when t h e re i s a n e e d to re co ve r o t h e r w i s e i n a c c e s s i b l e informaon or data. 2.1 The parcipants of virtual