‘My Appointment as CSAT President, Announces Nigeria’s Legal Profession Worldwide’

The nation came into international legal recognition, when for the first time in the history of the Commonwealth Secretariat Arbitral Tribunal (CSAT), a Nigerian, the first Black person and first African was appointed as the President of CSAT. His Excellency, Judge (Professor) Epiphany Azinge, OON, SAN was first appointed into the Tribunal in 2015. His recent elevation and assumption of office as President of the Tribunal, has raised Nigeria’s profile in the international legal community. In a chat with Onikepo Braithwaite and Jude Igbanoi last week, the former Director General of the Nigerian Institute of Advanced Legal Studies (NIALS), gave a deep insight into how the Tribunal works, its composition and the benefits Nigeria stands to gain by his appointment. He further condemned the vexatious ease by which Nigerian Lawyers challenge arbitral awards in court

Introduction

Learned Silk, or should we say Judge Prof, Congratulations on your recent appointment as the First African and First Black person ever to be appointed as the President of  the Commonwealth Secretariat Arbitral Tribunal London. Indeed, this is a laudable milestone for Nigeria. Tell us a bit about your Tribunal. What type of cases do you hear? What does your new role entail?

As  you are aware, I have  been  appointed  a Judge of the  Commonwealth  Secretariat  Arbitral  Tribunal (CSAT)  since  2015, and  members  of the Tribunal  are fittingly addressed as Judge. So, it is not out of place to refer to me as Judge of the Commonwealth  Secretariat Arbitral Tribunal. But, that is  beside the point. The title  is not as important  or significant as the job we do as Judges of the Tribunal. As an international Administrative  Tribunal,  the jurisdiction  of the Tribunal is defined by statute adopted by Commonwealth  Governments  on the 1st  of July, 1995.

My appointment as President of the Tribunal is undoubtedly, a  remarkable milestone for Nigeria. In the history of the Commonwealth  Tribunal, I am the first  African and First  Black Person to be appointed  President  of the Tribunal. This elevates me to  equal pedestal  as Justices of the International  Court of Justice (ICJ) with diplomatic  immunity and overriding pre-eminence amongst the Judges of the Commonwealth Tribunal. This underscores  the title  of  His Excellency  attached to my office.

The Commonwealth  Secretariat  Arbitral  Tribunal,  is not at par with other Commercial  Arbitration panels.

The CSAT is established  by the 56 Commonwealth  Nations to hear and determine  any  application  brought  by: 

(a) A member of  staff of the Commonwealth  Secretariat  itself.

(b) The Commonwealth  Secretariat  itself.

(c) Any other person who enters a contract with the Commonwealth  Secretariat, and there is allegation of non-observance of a contract.

The CSAT is also competent to hear and determine applications  involving an international or intergovernmental Commonwealth  body or organisation,  which  meets the requirements  as set out in the statute of CSAT. Cases could originate from London, Geneva or New York  – centres, where Commonwealth  Offices are located  in the world.

The role of  the President  of CSAT is enormous  and encompassing. Mark you, the Tribunal consists of eight members, including the President, and all are nationals of the Commonwealth member  States.

As President, it is my responsibility to constitute the  Panels of three for every case, and I must preside over the case and write the Judgement also. If there are applications for  review by either of the parties, it is also the duty of the President to set up a review  panel  of five and the President  shall determine the most senior member of the panel  of five preside over the review  case.

Both the statute and rule of the CSAT place a lot of administrative  and judicial  burden  on the President of CSAT, and to this extent, the President is the live wire of the Tribunal. This requires demonstrating  leadership, and being the moral compass for the activities of the tribunal.

Your appointment will certainly be an advertisement to the world, that Nigerians are not only serious about Arbitration and ADR, but that we have world class Arbitrators here. How did you get to this point, especially seeing as Arbitration practice is yet to be fully entrenched in Nigeria? Kindly, share with us, your journey to becoming the President of the Commonwealth Secretariat Tribunal  London

To  a large  extent, my appointment announces Nigeria’s legal  profession to the world. But, there are so many before me like the Elias’s Ajibola’s, Onyeama’s etc. These were strong representatives  of Nigeria, at the International Court of Justice (ICJ). We have a host of  Nigerians, who have excelled as world class Arbitrators. But, the CSAT is not another form of Arbitral Panel. As representatives of various countries and given the limited number of Judges at any point in time, the quality of Judges is expectedly very high. Judges of CSAT are of high moral character and must have held, hold or be qualified to hold high judicial office in a Commonwealth country or be juriconsults of recognised competence with experience as such for a period of not less than 10 years. The President and other members of the Tribunal  shall be selected by Commonwealth  Governments  on a regionally  representative basis, with an appropriate gender  balance.

Yes, Judges  of the Tribunals  can be knowledgeable in Arbitration and ADR, but, they must also be qualified to be Judges of the CSAT.

My Appointment is purely at the pleasure of the Government  of the Federal Republic of Nigeria. I was nominated and had to scale the regional hurdle, and this means getting the whole of Africa to endorse my candidature. Africa  had to sell my nomination to the rest of the Commonwealth Governments, before I could be appointed. This was first in 2015, and I was reappointed again in 2019 going  through the  same process. My appointment  to the Presidency is on the recommendation of  my  colleagues  to the  Board  of Governors, and ratification of Heads of State and Governments of the Commonwealth  of Nations.

Of what advantage would you say your headship of this august institution will be to Nigeria and Nigerian Arbitrators?

My Presidency is of the Commonwealth  Tribunal  and the advantage is for the whole of the Commonwealth, and not for Africa alone (my Region) or for Nigeria (my country). Indeed, the code of conduct for judicial officers of the CSAT enjoins us to be loyal to the Commonwealth, and not to our respective member countries.

But, certainly, the knowledge  I have gained  in the past eight years,  both as an international public servant and a Judge of the international  Administrative  Tribunal,  is one that I will continue  to share  with students and my mentees. I look forward to documenting my thoughts in my memoirs also. 

One major complaint of Nigerian Arbitrators is that most multinational companies operating in Nigeria appear to prefer and choose a seat of arbitration outside Nigeria, even for disputes that arise from transactions involving Nigeria and Nigerian companies. Why is this so? How can Nigeria be made more attractive as a seat of Arbitration and developed into an Arbitration hub?

I am fully aware of the complaint of multinational companies  operating in Nigeria, and their preference for a seat of Arbitration outside Nigeria. As someone who has been involved in Arbitration  cases and has watched in dismay  cases starting from High Court after Awards have been handed down and go through  the judicial  ladder to the Supreme Court, it does not project us well before the international  community. This is condemnable and abuse of process. The legal profession (indeed, the Arbitration community), must do some cleansing. There must be some standards and indeed, sanctions. I am not aware of any disciplinary measure by Institute of Arbitration against members for trying to circumvent awards, by invoking all subterfuges to avoid honouring awards. Judges and our courts should also have a role, in this regard. Should challenges of an award for any reason be automatic? Should there not be high obstacle to be cleared, before the matter can be entertained by the courts?

Nigeria can never be an attractive hub for Arbitration, unless there is sufficient evidence to show that Nigeria’s courts can rule against the Government agencies and MDA’s. The independence of the judiciary in this regard is seriously questioned, and this is a clear minus for Nigeria as an attractive seat for Arbitration. 

Nigeria’s Arbitration law has been undergoing a process of review for more than half a decade now. It has gone to the National Assembly and back. What could be responsible for the seemingly unending delay?

The good news is that Nigeria’s Arbitration Law is undergoing statutory reforms. Laws must be dynamic, to be effective. To shift the frontiers of law, is to be able to catch up with the dynamics in society. Statutory amendments, are usually difficult and challenging procedures. Given the litany of statutes waiting for amendment at the National Assembly, it is to be expected that there will be delays in legislative amendments. What is fundamental however, is that we should not lose focus and continue pressing for the review. 

If Arbitration is governed and regulated by one codified law, UNCITRAL, why do we have so many arbitration bodies and institutions, which mostly don’t seem to have cohesion, especially in Nigeria? How can this issue be addressed?

Choice of forum, is one fundamental right available to parties in Arbitral Disputes. This is regardless of principles, laws applicable in various jurisdictions. The plethora of bodies and institutions are basically regulatory in nature, and do not in any way diminish the administrative cohesion expected.

In Nigeria, the regulatory bodies have performed excellently well in ensuring perfect grooming of members, and upholding high ethical standards among members. 

Is there a way that we can formally entrench Arbitration into our justice system, in order to reduce the dockets of the courts?

Our justice system has for a long time incorporated and internalised Arbitration, through the Multi-door court system. In specialised matters like matrimonial causes etc, avenues for dispute settlement are formally entrenched. Whether these are enough for reduction of the dockets of the court, is a totally different proposition. What is critical, however, is Lawyers educating their clients of the relevance and significance of adopting options other than litigation, which certainly have advantages over and above litigation. 

Some have suggested that ADR be introduced into the LLB curriculum in Nigerian Universities. Do you support this call? Would you say the curriculum in the Nigerian Law Faculties are up-to-date and adequate in today’s world?

There is nothing wrong with widening the course content of the LLB Curriculum, to accommodate ADR in Nigerian Universities. The norm however, is to incorporate ADR contents into various courses at various level of Legal Studies in the Law Faculty. Be it Nigerian Legal System, Law of Contract, Torts, Constitutional Law, Family Law, Commercial/Business Law, Administrative Law, and Criminal Law. ADR can be introduced into these various subjects at the LLB Level. It can then be made a full course for the master’s degree program. 

How do you think the outgoing Buhari administration has fared vis-à-vis its main campaign promises – fighting corruption and insecurity, and revamping the economy? What issues would you prioritise for the incoming administration? 

I am afraid, I am unable to comment on issues of politics, both locally and internationally. The Code of Conduct for Judicial officers of the CSAT does not encourage us to engage in such issues, and I am therefore, unable to speak competently and authoritatively on matters of domestic politics in Nigeria. All the same, I wish the outgoing administration the best of luck. I feel highly honoured that it was in the lifespan of the administration that I was first appointed, reappointed, and became President of the CSAT. 

Thank you Judge.