‘6th ICC Arbitration Conference Will be a High-Powered Event’

Nigeria has no doubt come into a clear lead, in the Arbitration community in Africa. In the quest to deepen arbitration practice in Nigeria and make the country the arbitration hub in Africa, the International Chamber of Commerce Nigeria (ICCN) Arbitration & ADR Commission is scheduled to hold its 6th ICC Africa Arbitration Conference at the Civic Centre and Eko Hotel, both in Victoria Island, Lagos on 1st – 3rd June, 2022. Onikepo Braithwaite and Jude Igbanoi talked to the Chairman of the ICCN Arbitration & ADR Commission, Mrs Dorothy Ufot, SAN, on the preparations for the Conference at which the first female President of the institution, Ms Claudia Salomon, and the Director General of the World Trade Organisation, Dr Ngozi Okonjo-Iweala are expected to speak. Mrs Ufot, SAN, the current holder of the prestigious African Arbitrator of the Year Award, also expressed her views about other burning national issues, including the new law to criminalise payment of ransom for kidnap victims

Arbitration has gradually been entrenched in our justice delivery system, but a lot of arbitral awards still end up in the courts. For some, arbitration is merely a first step towards litigation. Although we have seen the courts in recent times declining jurisdiction over arbitral awards, how can this narrative be changed so that arbitration will become more deeply entrenched here?

Arbitration remains the preferred mechanism, for the settlement of domestic and international business disputes in Nigeria. Given the relationship between arbitration and investment, the arbitration industry in Nigeria has been a beehive of activities in recent years, and as you rightly put it, arbitration has become entrenched in our justice delivery system. There is no doubt that, quite a number of awards still end up in the courts. This is however, not peculiar to Nigeria or Africa alone. Awards end up in the courts all over the world, but I will admit that this is more prevalent in Africa. When an award is published and the losing party voluntarily complies with the terms of the award, then there is no need to resort to the courts for the recognition and enforcement of the award. However, where the losing party fails to comply with the award, the winning party will need to seek the assistance of the court for the recognition and enforcement of the award in accordance with the provisions of the Arbitration and Conciliation Act, Cap A18, LFN 2004. Likewise, where a losing party is aggrieved by the decision of the arbitrator, the law permits him to seek the setting aside of the award in court under the grounds provided in the Arbitration Act. Every arbitration agreement provides that the resultant award is final and binding. Unfortunately, many contracting parties do not appreciate the purport of this provision, when entering into a contract containing an arbitration clause or an arbitration agreement.

We can stem the tide of arbitration awards ending up in court and change the narrative about arbitration being a first step to litigation, if contracting and disputing parties commit to honouring the award, no matter the outcome, provided all parties have been given equal opportunity to present their case and due process has been followed by the arbitrators. The parties, their counsel and representatives must all commit to the success of the arbitration process which they have voluntarily entered into and agreed to be binding on them. Counsel must be knowledgeable about the arbitration process and advise their clients on the need to honour the award, even if the award is not favourable to them, provided the right things have been done by the arbitral tribunal. Counsel and indeed, all parties, must adopt a pro-arbitration stance and shun guerrilla tactics during arbitration proceedings, if this narrative must change.

The arbitral tribunal must be knowledgeable and fair to all parties, giving them equal opportunity to present their case. The Tribunal must shun corruption and at the conclusion of the hearing, publish an enforceable award. The Nigerian courts have a very important role to play in changing this narrative. The courts must continue to be arbitration friendly, and shun applications for anti-arbitration injunctions. Awards must be set aside, only on the grounds prescribed by the Arbitration and Conciliation Act, 2004 and the New York Convention. All hands must be on deck in order to change this narrative, and ensure that arbitration becomes more deeply entrenched in Nigeria.

Today, there are so many arbitration bodies in Nigeria. How can we ensure cohesion amongst these bodies, to instil confidence in arbitration by disputants?

The proliferation of arbitration institutions in Nigeria is not in doubt, as several arbitration institutions have been established in Nigeria in the last 10 or more years, including the International Chamber of Commerce (ICC) Nigeria Arbitration and ADR Commission.

It is one thing to establish an arbitration institution, and another for the institution to be viable and internationally recognised as the go to arbitral institution for the resolution of business disputes. It is not the number of arbitral institutions that matters. What matters is the viability of the institution, and maintaining a viable and internationally comparable arbitral institution that is capital intensive. We need independent and world class arbitration institutions with modern and internationally comparable facilities, such as obtains at the ICC Court of Arbitration in Paris, the Maxwell Chambers in Singapore, the Arbitration Place in Toronto and the re-modelled HKIAC Centre in Hong Kong, to mention a few.

In order to instil confidence in the users of the process, our arbitration institutions must embrace international best practices and embark on aggressive marketing and sponsorship of international arbitration programmes, in order to achieve market presence and gain international recognition and acceptability. The truth is that competition is rife even among the well-established arbitration institutions around the world, and several institutions are in a race to be the preferred institution for the users of arbitration services globally, such as the ICC International Court of Arbitration which is referred to in international arbitration circles as the best international arbitration institution in the world. Accordingly, the issue goes far beyond merely naming a place an international arbitration centre.

As a leading expert in ADR, what in your view can be done urgently to make Nigeria an attractive choice and arbitration hub in Africa?

One of the critical determinants of the choice of a seat in international arbitration is the legal framework for arbitration in the proposed country, evidenced by a contemporary and modern national arbitration legislation. The legal framework for arbitration in Nigeria is the Arbitration and Conciliation Act (ACA) Cap A18 LFN 2004, which applies throughout the Federation of Nigeria. The ACA is 34 years old, having been promulgated by Military Decree in 1988. One of the acknowledged challenges for making Nigeria an attractive destination for international arbitration is this obsolete law which has long passed its sell-by-date, in view of the enormous changes and progress that have been recorded in the field worldwide, since the promulgation of the ACA in 1988.

Arbitration practitioners have clamoured for a review of the Arbitration and Conciliation Act for several years, in order to bring it up to the standard of modern arbitration legislation around the world. Happily, the Nigerian Senate heeded this clarion call on 10th May, 2022 by passing a Bill to enact the Arbitration and Mediation Act, to provide a unified legal framework for the settlement of commercial disputes. The Arbitration and Mediation Bill seeks to repeal the Arbitration and Conciliation Act, Cap A18, LFN, 2004. The Bill also seeks the application of the Singapore Convention, on the International Settlement of Disputes resulting from mediation. The Bill is presently awaiting the President’s assent, to be enacted into law.

Other suggestions for making Nigeria an attractive destination for International Arbitration include the following, which are not exhaustive:-

1) The Arbitration and Conciliation Act (ACA) requires an urgent review. This is being taken care of as we have heard.

2) Our Judges must support the arbitration process, and enforce arbitration agreements and arbitration awards as appropriate.

3) The Judiciary must adopt a consistent pro-enforcement stance, when dealing with enforcement of arbitration agreements and awards.

4) Recognition and enforcement of arbitral awards must be refused, only under the circumstances set out in Article V of the New York Convention and Sections 52(2)(b)(i) and (ii) of the Arbitration and Conciliation Act.

5) Nigerian Judges must be wary of granting anti-arbitration injunctions, except in exceptional cases that warrant the making of such orders, and must deal expeditiously with proceedings involving arbitration.

6) The procedure for enforcement of arbitral awards and agreements, must be simplified and expedited. One school of thought has canvassed the idea of the establishment of specialised courts or tribunals to handle matters relating to arbitration, similar to the Investments and Securities Tribunal, which exclusively handles capital market cases due to the speed with which such disputes are expected to be resolved.

7) Apart from ICSID awards which are enforced directly at the Supreme Court as the court of first instance, the length of time it takes for arbitration cases to get to the Supreme Court is embarrassingly excessive. This situation must be addressed, and the trend reversed.

8) The current security situation in Nigeria must be addressed.

9) We must deal with the perception of corruption, and our arbitrators must be men and women of knowledge, expertise and proven integrity.

10) Nigeria’s political stability must be guarded jealously.

11) Nigerian arbitration institutions must embrace international best practices and embark on aggressive marketing and sponsorship of international arbitration programmes, in order to achieve market presence and gain international recognition and acceptability.

12) The conduct of counsel during arbitration proceedings, must be pro-arbitration. Counsel must shun guerrilla tactics while conducting arbitration cases, and assist the process to its conclusion.

13) Arbitration clauses should be thoroughly negotiated and properly drafted in precise and unambiguous terms, in order to avoid intervention by the courts.

14) Arbitration proceedings must be conducted expeditiously, bearing in mind the limitation period for the commencement of an enforcement action. Accordingly, time is of the essence for the commencement of enforcement proceedings.

15) It must be recognised that the timeframe for instituting an action to set aside an arbitral award, is 90 days from the date of the award. It must also be noted that, arbitration awards are today not lightly set aside. As Nigeria is a signatory to the New York Convention, recognition and enforcement of arbitral awards may be refused only on the grounds recognised under the New York Convention.

You are currently the Chairman of the International Chamber of Commerce Nigeria (ICCN) Arbitration & ADR Commission and your 6th ICC Africa Arbitration Conference is taking place at Eko Hotel on 1st – 3rd June, 2022. Let us into the preparations so far, for this important Conference.

Preparations are in top gear, to ensure that the 6th ICC Africa Arbitration Conference is a huge success. The Conference is for three days starting from 1st June till 3rd June, 2022. There will be an ICC Institute Training on Assessment of Damages by Arbitrators on 1st June, 2022 at the Civic Centre, Ozumba Mbadiwe Road, Victoria Island, Lagos. There is a separate registration for the training session. The Conference itself will take place on 2nd & 3rd June, 2022 at Eko Hotel, Plot 1415 Adetokunbo Ademola Street, Victoria Island, Lagos.

We have engaged and partnered with relevant stakeholders across various sectors and industries, to ensure full participation at the Conference. This is a must-attend Conference. We have gathered an impressive lineup of over 60 top class speakers from around the world, who will keep delegates up to date with the latest developments in arbitration in Africa. This year’s Conference is hybrid, therefore, we will have delegates attending physically and online.

The topics of discussion during the Conference have been carefully selected, and they deal with contemporary issues in international arbitration such as “African Arbitration in Review: Developments, Challenges and Future Opportunities”; “Enforcement of Arbitral Awards: Challenges; New Trends in Energy Sector Disputes, the Attractions for African Arbitration Practitioners”; “Damages in International Arbitration; Approaches to Valuation in International Arbitration”; Hot topics: “Current Developments in International Arbitration, International Arbitration in Construction Disputes”; “Trends and Opportunities, Collaboration, Inclusion and Representation in African Arbitration”; “Bridging the Anglophone-Francophone African Divide”; “Disruption and Technology in International Arbitration”; “Arbitration Incubation: Ideas from the Next Generation”; “International Arbitration in Africa: Perspectives of In-house Counsel and Other Users of Arbitration to Settle Disputes”.

It is going to be a very engaging two days, that will absolutely be value for money. So far, the participants are from 18 countries of the world. The Planning Committee headed by Professor Gbolahan Elias, SAN has been working round the clock tirelessly, to ensure the success of this Conference, and I truly commend them for all their hard work. It is important to note that, we are partnering with the Nigerian Bar Association (NBA) to ensure the full participation of Nigerian Lawyers at the Conference.

What informed the theme of this 6th Edition of the Conference, that is “Arbitration in Africa: Transformation & Consolidation”?

The theme of this year’s Conference is “Arbitration in Africa: Transformation & Consolidation”. Nigeria has no doubt witnessed a transformation, in its arbitration ecosystem. This year’s Conference aims at deepening the gains made in the last six years, since we commenced the ICC Arbitration Conference in Africa. Going down memory lane and looking back at the themes of the previous conferences, back in 2016 with the theme, “Arbitration in Africa: Prospects and Challenges” to subsequent themes such as “Arbitration: Catalyst for Economic Growth”, “The Viability of International Arbitration in Africa –Thinking Globally, Acting Locally”, “Africa: Open for Business?”, “Arbitration in Africa: Expanding the Scope”, up to the current theme for the 6th Conference. Arbitration in Nigeria has indeed, transformed, and we seek to consolidate the gains of these past years. We are definitely not where we were 10 years ago. There has been huge transformation, on several fronts. Today, we are talking about geographical and gender diversity which have brought Africa and African arbitrators into limelight globally. The essence therefore, of this year’s theme, is to examine the transformation of arbitration and consolidate the gains.

We understand that the President of the ICC International Court of Arbitration in Paris will be at the Conference; that the Director General of the WTO, Dr. Ngozi Okonjo-Iweala will also grace the opening ceremony. This will certainly be a high-powered event. Which other African countries are you expecting at the Conference, and what is the level of response with regard to registration by Nigerian Lawyers and Arbitrators? Will Young Lawyers be able to afford the registration or are there discounts specially put in place for them? What are the highlights of the Conference? What social activities do you have planned for Conferees?

You are right that, this will be a high-powered event. You see, the ICC Court of Arbitration has been in existence for over 100 years, and in 100 years, the ICC Court has a female President in the person of Ms Claudia Salomon for the first time. Claudia has confirmed her participation in the Conference, and we are very excited to host her in Nigeria. Other invited dignitaries expected to grace the Conference, include the DG of the WTO, Dr. Ngozi Okonjo-Iweala. Also speaking at the opening ceremony is the Rt. Hon. Wamkele Mene, Secretary General of the African Continental Free Trade Area (AFCTA), the President of the Nigerian Senate, Senator Ahmed Lawan, the Governor of Lagos State, H.E. Mr. Babajide Sanwo-Olu and the A.G. of Lagos State, Mr Moyosore Onigbanjo, SAN. Also expected to grace the opening ceremony is the President of the Nigerian Bar Association (NBA), Mr. Olumide Akpata, who will also deliver a welcome address.

We are expecting delegates and speakers from around the world, particularly from the French and English speaking countries in Africa. The Conference will be bilingual, with simultaneous translations. The Conference will analyse the issues facing arbitration in Africa. The annual Conference is very strategic for the arbitration community, to the extent that it keeps creating a growing awareness of the importance of arbitration as a dispute resolution mechanism. There are affordable discounted rates for young Lawyers, as applied at all levels at ICC Conferences globally. There are other activities tailored specifically for young Lawyers and arbitrators, who are considered the next generation of arbitrators.

Some highlights of the Conference include various speeches by high profile guests at the opening ceremony, and the interviews with the ICC Court President, Ms Claudia Salomon. On social events, there will be an opening cocktail organised by the NBA at which event the President of the NBA will deliver a welcome address in the evening of the training session, there will be dinners and adequate networking events with the ICC President in attendance. There are also scheduled visits to the art gallery and the international market. I am confident that our visitors will experience the Nigerian hospitality.

In 2020 you clinched the prestigious award of African Arbitrator of the Year. What is the significance of this award, for you and for Nigeria?

The African Arbitration Awards 2020 was hosted by the East African International Arbitration Conference to spotlight Africa’s innovation and achievements, and to shine a light on exemplary leadership and success by Africans in international arbitration. The nomination was open to all international arbitration practitioners in Africa.

I contested in the category of African Arbitrator of the Year. This category sought to spotlight and recognise an arbitrator who is a national of an African country, who is over 40 years old. Such an Arbitrator must be a thought-leader in the international arbitration eco-system, and experienced in international arbitration. The Arbitrator must have sat in arbitrations with significant impact on the development of arbitration in the African continent, and is considered by the international arbitration community, users and peers to be deserving of being named the African Arbitrator of the Year 2020.

The award is significant to Nigeria because the final shortlist from thousands of nominees from across Africa was my good self (Nigeria) alongside two other renowned international arbitrators from Mauritius and Egypt. I was declared the winner by majority votes from across the world, particularly by the international arbitration community. The award is significant to Nigeria because it changes the narrative, that there is a dearth of qualified arbitrators in Nigeria. I still hold the title, African Arbitrator of the Year because the awards were not conducted last year due to the Covid-19 pandemic.

You are one of the few female Senior Advocates of Nigeria. Tell us about your journey to taking Silk. Was it difficult? Why are there still so few lady Silks, despite the fact that there is possibly an equal amount of female and male Lawyers in Nigeria?

My journey to becoming a Senior Advocate of Nigeria was expectedly, tough and rigorous. Becoming Silk was the realisation of a 20 year old dream. It took strong determination, hard work, focus, and the grace of God to make it. 

After my call to the Nigerian Bar in 1989, I trained under a renowned Senior Advocate of Nigeria, Mr Harry Afolabi Lardner, SAN (deceased), where I gained considerable experience in litigation in all the superior courts in Nigeria, such as the High Court, Court of Appeal and the Supreme Court. I nursed the ambition of taking Silk at the chambers of Mr. H.A. Lardner, SAN, whose advocacy skills I greatly admired. With Mr Lardner, I saw the beauty of becoming a successful Lawyer. My boss personally trained me. Having joined the chambers straight from Law School, I recall Mr Lardner handing me the Rules of the Lagos State High Court to read, and explain my understanding of what I have read to him. We went to court almost every day. I learnt advocacy, the art of pleading and brief writing from my boss. I also learnt court room dynamics from him.

I founded Dorothy Ufot & Co in Lagos in 1994, where I continued my practice as a trial Lawyer and secured numerous successes for my clients in commercial litigation in the superior courts of record in Nigeria. As part of my contribution to society, I provide legal services on pro bono basis to indigent members of the Nigerian society. In the course of my career, I set free one Etukudo Samuel Attai, who had been on death row for over ten years. I represented him on pro bono basis, and got his conviction quashed by the Court of Appeal. He was acquitted and discharged in 2007.

I became a Senior Advocate of Nigeria in 2009, twenty years after I was called to the Bar. Since then, more women have taken Silk in recent times. This notwithstanding, there is still a wide gap between the number of men and women who have taken Silk. 

The journey to becoming Silk is extremely challenging for a woman who combines the roles of a wife, mother and career. Although, it is tough, it is certainly not impossible. One only needs to remain focused, work hard and persevere. However, no matter how tough, I do not believe in standards being lowered for women. I believe that with time, more women will take Silk.

What is your opinion about the new law passed by the National Assembly criminalising the payment of ransoms to kidnappers? Should this be so when people are kidnapped not through any fault of theirs, but because the Government has failed to ºsecure the lives of Nigerians?

The Senate has recently passed a bill seeking to amend the Terrorism (Prevention Act) and to prohibit the payment of ransom to kidnappers in Nigeria. It is important to state that Section 14 (2) (b) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, provides under the Fundamental Objectives and Directive Principles of State policy that: “the security and welfare of the people shall be the primary purpose of government”.

It is therefore, not in doubt from the above provision that the security of the citizens is the responsibility of Government, and not that of the citizens. The pertinent question to ask is, where the Government has failed to secure the lives of the citizens, will it be proper to burden the citizens with punishment for this failure? It is my belief that the answer is No. In other words, where Government fails to secure the citizens, and as a result, a citizen is kidnapped, will it be proper to punish such citizen for trying to secure his or her life? All these questions ought to have been answered, before contemplating the enactment of any law criminalising the payment of ransom. A recent example is the incident of the Kaduna-Abuja train attack and kidnapping. It was very disheartening to watch the mother of one of the victims, calling on the Government to help secure the release of the kidnap victims. Nothing has happened so far.

There is no doubt that the payment of ransom may encourage kidnapping; however, the ransoms are not paid voluntarily, but out of threat and fear of the victim being killed. Any act done involuntarily, can be excused under the criminal defence of duress. It is my opinion that it will not be in the interest of justice and equity to punish anyone for an act done under duress, and the payment of ransom is usually done under duress and not with the freewill of the victims of the kidnap.

I think the law criminalising the payment of ransom will not be enforceable, and the same will be observed more in its breach than otherwise. In my opinion, it is unfair to criminalise the payment of ransom, in the present circumstances.

Thank you Learned Silk.