Arbitration Edition by ESQ Legal Practice Magazine

EsQ volume 3 issue 7

LEGAL

PRACTICE

NIGERIA: SOVEREIGN IMMUNITY AND THE TRIALS OF AUGUSTO PINOCHET CHIEF BOLAJI AYORINDE SAN

DOMESTIC ARBITRATION IN NIGERIA: CAN FOREIGN COUNSELS STILL RUN THE RACE? OGHOGHO AKPATA & ADEWALE ATAKE

ARBITRATING IN AFRICA SIMON NESBITT & RASHIDA ABDULAI

AFRICA ON THE GLOBAL ARBITRATION MAP: ARE WE TRULY PREPARED BABATUNDE FAGBOHUNLU, SAN PARTNER, ALUKO & OYEBODE

1 234567 891019

11213

Finance

Marketing

Management

Technology

Sports

Lifestyle

ESQ NIGERIAN

LEGAL AWARDS 2014

...celebrating excellence in the Nigerian Legal profession

September 18th 2014 Lagos, Nigeria. AWARD CATEGORIES Practice Based Award

Section: Public Sector

Section: Deals

Attorney General of the Year

Banking &Finance Team of the Year, Capital Market Team of the Year,

Section: General

Mergers &Acquisition Team of the Year, Insolvency and Restructuring Team of the Year, Intellectual Property Team of the Year, Private Equity Team of the Year, Dispute Resolution Team of the Year, Energy/Oil and Gas Team of the Year, Real Estate Team of the Year, Corporate Team of the Year, Telecommunication Team of the Year

CSR Law Firm of the Year, Practice Manager of the Year, Award for Academic Contribution, Gender Friendly Law Firm, Law Writer of the Year (Journalists), Development of Talent, Young Lawyer of the Year Section: Law Firms International Firm of the Year, Offshore Firm of the Year, Cross Border Transaction of the Year, National/Regional Law Firm of the Year, Law Firm of the Year

the judges Dr. Adesegun Akin-Olugbade OON, Executive Director/General Counsel, African Finance Corporation, Mr Ore Olajide, Legal Adviser, Nigerian Bottling Company Limited, Mrs Olatowun Candide-Johnson, General Counsel/Company Secretary of Total Upstream Companies in Nigeria; Mr Dapo Otunla, General Counsel, Notore Chemicals and Industries Ltd., Mrs Ngozi Okoronkwo, Chief Legal Officer, OANDO, Ms Tinuade Awe, Head of Legal and Regulatory Division, Nigerian Stock Exchange, Nankunda Katangaza, Head of International Policy, Law Society of England and Wales, Mrs Toyin Sanni, MD/CEO of UBA Capital and Chairperson of the Capital Market Operators, Mrs Nike Laoye, Chief Legal Counsel, at Eco Bank Plc and winner of the Legal Team (Financial Services) at the maiden edition Prof (Mrs) Yinka Omorogbe, Former General Counsel of NNPC, Mr Dayo Okusami, Group General Counsel, Atlantic Energy Drilling Concept Nigeria Limited, Mrs. Helen Anatogu, Corporate Attorney/Legal Manager, Anglophone West Africa & Angola, Microsoft Corporation, Mrs. Chioma Madubuko, General Counsel, Dangote, Dr. Mark Ighiehon, General Counsel, Shell UK, Ms Nike Olafimihan, General Counsel/Company Secretary, Shell E & P, Nigeria, Ms Rotimi Oghenerume, General Manager, Commercial Legal, MTN, Mrs Kemi Shaba, Legal Manager, Multichoice, Nigeria, Mr Babatunde Akinyanju, Chairman, British Nigerian Law Forum, UK, Ms Remi Aiyela, Publisher, NOG Intelligence, Mr. Ned Mojuetan, Mrs Abimbola Izu, Legal Adviser/Company Secretary, Skye Bank Plc, Mrs Mirian Kachikwu, General Counsel, (West Africa) ABB Group, Dr. Jumoke Oduwole, Legal Consultant and Lecturer, Commercial Law, University of Lagos, Mrs. Ibirobo Adekola, Director of Legal Services, Airtel Nigeria, Mrs. Fola Akande, Company Secretary/Chief Counsel (West Africa), Cadbury Nig. Plc, Mr Adeyemi Johnson, CEO Open Spaces Compliance, UK, Mr. Osilama M. Otu, Company Secretary/Legal Adviser, Zenith Bank Plc, Ms. Ibiyemi Solanke, Legal Counsel, Orange UK. · Entries/Nominations & Sponsorship Enquiries Adekemi Edema- 07016714842 or a.edema@esqlaw.net · Event Enquiries & Table Bookings 08091556412 or awards@esqlaw.net

inside LAW SOCIETY HOLDS INTERNATIONAL MARKETPLACE I10I CONFERENCE

I11I D.C LAW FIRMS LOOK TO AFRICA FOR NEW BUSINESSES NIGERIAN COMMUNITY BACK IN UK COURT OVER SHELL COMPENSATION FOR OIL SPILL I13I

ENHANCING AFRICA AS THE ARBITRATION HUB CHIEF MRS TINUADE OYEKUNLE

I42I

MOROCCO SELLS 1 BILLION EURO BOND AS BORROWING COSTS FALL

EGYPT PREVAILS ON FORK-IN-THE-ROAD PROVISION

TANZANIAN COURTS INJUNCT ICSID PROCEEDINGS

ICAMA CHARTS FUTURE FOR ARBITRATION IN AFRICA

CENTRAL AFRICA REPUBLIC PRESIDENT REQUESTS ICC INVESTIGATION

ICC CONFIRMS CHARGES AGAINST FORMER IVORY COAST PRESIDENT

INTERNATIONAL ARBITRATION CONFAB HOLDS JULY IN I26I LONDON

inside LIBYA TOP COURT DECLARES PM APPOINTMENT UNCONSTITUTIONAL I36I

ZAMBIA LURES FOREIGNERS BACK TO DEBT WITH RECORD T-BILL YIELDS I38I

GHANA EASES FOREIGN-CURRENCY RULES TO INCREASE GREENBACK SUPPLY I39I A MULTIGENERATIONAL APPROACH TO ENGAGEMENT AND RETENTION

AFRICA ON THE GLOBAL ARBITRATION MAP: ARE WE TRULY PREPARED

I52I

I30I

DOMESTIC IN NIGERIA: CAN FOREIGN COUNSELS STILL RUN THE RACE?

NIGERIA: SOVEREIGN IMMUNITY AND THE TRIALS OF AUGUSTO PINOCHET

NIGERIA: INJUNCTIONS PENDING ARBITRATION: A LEGAL MYTH?

THE ROLE OF LAWYERS IN DIASPORA IN SHAPING QUALIFICATION AS A LEGAL PRACTITIONER IN NIGERIA AND CONTINUING LEGAL EDUCATION

ARBITRATING I76I IN AFRICA

boma ozobia Boma Ozobia is a dual qualified lawyer with 20 years experience. She holds a Masters degree in Maritime law from King's College, University of London and is an accredited Civil and Commercial Mediator. She is principal partner at Sterling Partnership. Boma as chairwoman (2005) of the Association of Women Solicitors was the first person of minority ethnic origin to serve in that capacity in England and Wales. She currently serves as the President of the Commonwealth Lawyers Association and as a trustee of the Royal Commonwealth Society and is on the executive committee of the British Nigeria Law Forum. An accomplished public speaker, Boma has written articles for many respected publications and is a co-author of the book, “Sisters- in -Law”, a career guide for Nigerian women lawyers.

EsQ seun abimbola He is the Senior Partner of Prime Solicitors, Ibadan. He holds a masters degree (LLM) in law and has distinguished himself in Litigation, Arbitration, Intellectual Property, Oil and Gas Law Practices. A prolific writer and strategist, Seun is the current Chairman of NBA, Ibadan branch. He is a certified mediator with CEDR (UK), a Neutral of the multi door court houses in Nigeria, and a member of the International Bar Association.

Publisher/Editor-in-Chief

Lere Fashola Business Director

Funmi Ekibolaji Advisory Board

Olurotimi Akeredolu SAN Gbenga Oyebode MFR Kayode Sofola SAN Prof Mrs Yinka Omorogbe Kofo Dosekun Soji Awogbade Dr. Bayo Adaralegbe Editorial Consultant

Seun Abimbola

sola adepetun Sola Adepetun is the Managing Partner of Adepetun, CaxtonMartins, Agbor & Segun. He is also a Partner in the Energy and Project Finance Group of the Firm, specializing in energy and project finance law issues and particularly in relation to oil and gas development project negotiations and the acquisition and disposal of petroleum exploration and production companies and interests. With 28 (twenty-eight) years of legal experience, Sola is responsible for advising many international companies on foreign investment laws, corporate establishments and accreditation issues, the Nigerian licensing regime and generally on strategic alliances in the Nigerian Oil & Gas Industry. He advises on petroleum taxation, industry and general business compliance and commercial matters ancillary to oil and gas corporate activities. He is a graduate of the University of Lagos and has an LLM from the London School of Economics. He is a member of the Nigerian Bar Association, the International Bar Association Section on Energy & Natural Resources Law, and the News Section Editorial Board of the International Energy Law and Taxation Review. He has also been a member of the Oil and Gas Sector Reform Implementation Committee (“OGIC”) of the National Council of Privatisation and the pioneer board of the African Institute of Petroleum.

IT Gbenga Olotu Graphics

Joel Ibiyemi Photography

ESQ Studios Circulation Manager

Femi Adeboye Legal Adviser

Adekemi Edema Training Manager

Akinkurolere Oluwaseun Advert & Subscription Enquiries

08035269055 advert@esqlaw.net subscription@esqlaw.net

abimbola ojenike Abimbola holds a LL.B from the University of Ibadan. A prolific writer, Abimbola is a regular contributor in newspapers and other local and international magazines. He is presently serving as an Associate in a reputable law firm in Lagos.

Website

esqlaw.net Published by

Legal Blitz Legal Consultants. 2, Ayodele Fanoiki Street, Magodo GRA, Phase 1, Lagos, Nigeria. Comments, advice and other enquiries to

editor@esqlaw.net

www.esqlaw.net

Negotiation and Documentation of Power Contracts & Power Project Financing School Date: 29th-30th July, and 31st July-1st August, 2014 respectively

editorial

ESQ LEGAL PRACTICE MAGAZINE RESTRUCTURES ITS LEGAL AWARDS, APPOINTS TOP GENERAL COUNSELS AS JUDGES

s globalization of legal services reinforce the need for standardisation of practices and systems, the

Director/General Counsel of the Africa Finance Corporation, who won the General Counsel of the year category at the maiden edition of the award. Other confirmed judges include, Mrs Toyin Sanni, CEO of UBA Capital and legal profession in Nigeria continues to witness greater changes and innovative Chairperson of the Capital Market Operators, Mrs Nike Laoye, Chief Legal achievements far higher than Officer at Eco Bank Plc and Head of the many other sectors in the economy. Legal Team (Financial Services) at the There is therefore the need to celebrate maiden edition, Mrs Olatowun Candidethe unique contributions that lawyers Johnson, General Counsel, Total make to the growth of businesses in Upstream Companies in Nigeria, Ms Nigeria. To this end, ESQ Legal Practice Nike Olafimihan, General Counsel, Shell Magazine, the number one legal practice E&P Nigeria, Dr Mark Ighiehon, General magazine in sub Saharan Africa has Counsel Shell UK, Mrs Mirian Kene reorganised its Legal Awards to a higher Kachikwu, General Counsel ABB Group standard by restructuring its judging (West and Central Africa) Mrs Helen process and criteria for the various Anatogu, Corporate Attorney, West and categories of awards. Central Africa, Microsoft Inc., Mrs Fola Following the various feedbacks from Akande, Chief Legal Counsel, (West the last award in 2010 and in order to Africa) Cadbury Nigeria Plc., Mr Dapo shore up the credibility of this first and Otunla, General Counsel NOTORE, Prof highly reputable legal industry award, Mrs Yinka Omorogbe, Former General we have carefully selected a panel of Counsel of NNPC, Mr Michael Otu, judges made up of respectable general General Counsel, Zenith Bank Plc., Mr counsel and notable business personali- Ore Olajide, Head of Legal, Coca Cola ties with records of integrity and (Nigeria), Mrs Ngozi Okonkwo, Chief professionalism. This panel is chaired by Legal Officer, OANDO, Mrs Tinuade Dr Adesegun Akin-Olugbade, Executive Awe, Head, Legal & Regulatory Division, Nigerian Stock Exchange, Mr Dayo Okusami, General Counsel, Atlantic Energy, Mrs Rotimi Oghenerume, General Manager Commercial Legal MTN, Mrs Kemi Shaba, Legal Manager, Multichoice Nigeria, Ms Natalie Dickson, Former General Counsel, First Hydo Carbon Nigeria, Mrs Abimbola Izu, Legal Adviser, Skye Bank Plc, Ms Nankunda Katangaza, International Policy Director, Law Society of England & Wales, Mr Adeyemi Johnson, CEO, Open Spaces Compliance UK and former General Counsel, GT Bank (UK), Ms Remi Aiyela, Publisher of NOG Intelligence, Mr. Akinleye Olagbende, General Counsel, Forte Oil Plc, and many others. Set out to recognise the important contribution the legal business community makes, to the development of the Nigerian economy, the ESQ Nigerian Legal Awards is undoubtedly an important recognition of achievement for lawyers. The quantity and quality of entries received during the maiden edition indicates that the accolades are valued highly by the industry. All over the world, there are similar respectable ceremonies that grant prizes but this offer another flavour as it is specifically for Nigerian lawyers and

www.esqlaw.net

because most Nigerian firms are playing at home, in front of their public, their audience, their clients, their colleagues, their neighbours, their bosses, the acknowledgement is even greater. As we stick very closely to the new trends in the market, we are able to see before anyone else and spot the new “kids on the block”, see how the “old guys” are doing in their traditional areas of practice or in new areas in which they are developing and see what innovations the new players are bringing to the game as well as the influence of the diaspora in the market. At ESQ, we are the first witnesses of change, innovation and continuity in the legal profession in Nigeria. However, this acknowledgement is not only local. Nigeria's international resonance results in a greater exposure for the participants. The ESQ Nigerian Legal Awards will honour outstanding law firms and legal professionals in Nigeria and in the diaspora. The Award reflect both preeminence in key transactions, practice areas, and achievements over the last twelve months, including notable work, strategic growth, excellence and innovation in client service, advancement in technology and contribution to the legal profession at large. The award is based on the legal deals or unique contribution to legal business in Nigeria within a period of twelve months. …The award will recognize and honour novel deals/transactions across different sectors and the In-House team as well as the law firms who were involved in structuring the deals. With a potential of over 500 participants, the ESQ Nigerian Legal Awards dinner attracts the ones who count in the legal sector. The 'Award nite' which is a glittering event of class and colour, gathers together the biggest names from the legal world and it provides a unique networking opportunity. The ESQ Nigerian Legal Awards represent the first and the most esteemed category of Legal Awards in the history of the Nigerian Legal business. It is organised by Legal Blitz Publishers of Esq Legal Practice Magazine and has been endorsed by the Nigerian Bar Association, the British Nigerian Law Forum, and the Nigerian Lawyers Association (US). www.esqlaw.net

EsQ legal practice I 09

LAW SOCIETY HOLDS INTERNATIONAL MARKETPLACE CONFERENCE

n 8th July, 2014, the Law Society of England and Wales held the 2014 edition of her flagship International Marketplace conference. This year's conference considered opportunities for legal business growth through working with governments, regulators and investors to produce modern and efficient business-friendly regulations. It also considered the benefits of contributing to public policy-making processes and uncover opportunities to lay the foundations for growth in key sectors such as extractive industries, technology and green innovation, and new financial centres.

need for legal expertise to build legislative, institutional and regulatory capacity across sectors to sustain this growth. New and non-traditional means of providing legal

services are increasingly in demand, and with that, great opportunities for lawyers to diversify their offer.”

was the focus of the agenda for this year's conference.“

Exploring these opportunities

“This trend, and the green shoots of recovery in the more developed markets, have brought to the fore the growing

ABA INTERNATIONAL 2014 FALL MEETING

he 2014 edition of the ABA Section of International Law fall meeting will hold in Buenos Aires, between 21 - 25 October, 2014. The 2014 Fall Meeting will bring together over 1,000

10 I EsQ legal practice

leading attorneys, corporate counsel, government officials, academics and NGO lawyers for a conference unlike any other. World-class speakers and international legal experts will lead over 70 continuing legal education sessions on international legal and ethics

issues. 2014 Fall Meeting attendees will have limitless opportunities to network with colleagues, decision makers, and potential clients from around the world and will also have ample time to experience the sights and sounds of Buenos Aires at planned social events, receptions and outings. All registrants will take home a free bottle of Malbec wine and leather iPad holder and will have the opportunity to sign

up for a several activities around Buenos Aires including free tango lessons and a home hospitality night. There will also be planned entertainment for registered guests, spouses and significant others.

www.esqlaw.net

TRIBUTE TO JUSTICE OPUTA: WHEN JUSTICE GOES TO SLEEP Lere Fashola Publisher, ESQ Magazine

he worth of a man's life is determined by the eminence of his name. At this time in Nigerian history, One hundred years after our existence as an amalgamated political entity and about fifty four years after independence from British colonial government, with lots of failed promises, downright exploitation, pauperization of the people, ethno- religious motivated violence, and often times gross violation of human rights, many people ask the question “Can the judiciary really bring hope to the masses?” Cynicism pervades the air we breathe. Not only is there a low view of the judicial system, but also a defeatist individualism has also taken hold of a considerable segment of the populace. The judiciary is seen by many as a highly compromised entity, corrupt and lacking in direction while 11 I EsQ legal practice

the bar itself is faced with many challenges eroding its conscience as the vanguard of democratic ethos. There is a crying need to find ways of raising public morale and morality in this respect. This story is written as a humble tribute to a legal hero and a judicial maestro Hon. Justice Chukwudifu Akunne Oputa JSC Rtd, CON. This is a compendium of the pragmatic lessons from the life of his lordship. Historians writing an account of the struggle towards a single and indivisible Nigeria built on the principles of equity and justice will no doubt record the invaluable contributions of Oputa at the National Human Rights Violation Commission (Oputa Panel) which he chaired to ascertain or establish the causes, nature and extent of all gross violations of human rights in Nigeria between January 15,

1966 and May 28, 1999. So will the historians who will write about the remarkable development of the Nigerian jurisprudence and the laudable contributions of Oputa JSC (as he then was). Memories of Oputa's dicta linger in the galleries of the mind, and portray the picture of a great jurist per excellence. He was indeed a man of inexhaustible courage and will and this reassure us all that in this country, by the grace of God, by trial and error and by perseverance over the years, we indeed produced an excellent man of whom any nation might well be proud. PROFILE Justice Oputa also known as “The Oputa of Oguta” was born on 22nd of September 1924 in Oputa, in the present Imo State. His father was Chief Oputa Izukwu and his mother Madam Nnawetu

Oputa. He had his early education in Sacred Heart School, Oguta and Christ the king College, Onitcha. He then proceeded to Yaba Higher College, but due to the exigencies of the Second World War, was sent to the famous Achimota College in Ghana, then Gold Coast. There he graduated with B.SC (Hon)Economics in1945. After this, he came back to Nigeria and took up appointment with Calabari National College. He later moved to Lagos where he worked as ADO (Assistant District Officer). It was where he achieved a remarkable feat; he studied at home and obtained his BA (Hon) History at home. Justice Oputa then proceeded to London where he got his LLB (Hon) and was called to bar in Gray's Inn, in London. Upon his return to Nigeria, then Barrister Oputa went into a brilliant and successful

www.esqlaw.net

private practice. Handling such celebrated cases and special inquiries as Oguta Chieftaincy dispute 1958/59, the Amanyanabo Dispute 1956/60 and many others. In 1966, Justice Oputa was appointed a Judge of the High Court of the then Eastern Nigeria and he moved on to become to first Chief Judge of Imo State ten years later. In 1984, he was elevated to the exalted position of the Honourable Justice of the Supreme Court. It is said that in any portrait or profile of persons, the human figure is known by its relation to the objects or scenes against which it is seen and are enabled by the very causes they serve. Porters are admired by their pots and artists by their paintings. Musicians are known by their music and poets by their songs. Similarly, the best way to see a judge is through the events on the Bench. According to Professor Laski, “There are more than mere incidents of time. There is a mind in events”. The Holy Bible also says that, “as a man thinks in his heart, so is the man”. Since judges are meant to be men of sound mind, it is expected that he will judge things according to his mind. As would be seen, Oputa's sense of the law and justice was coloured by his own personal experience. Orphaned at a tender age, Oputa was raised by his grandmother, Madam Ogonim Enesha a devout catholic who also brought him up in the conservative high mass liturgical way of the Catholics. As an ophan, He was therefore “no stranger to adversity and the ever present peril of bad luck”; Oputa was also a thorough bred humanist having studied history, economics and later law. This further gave him a deeper insight into the world of humanity and the frailties of human mind. This deep understanding would later be seen in his judgements and other legal writings. Looking at some of Oputa's utterances on the bench, and the views which he expressed on those matters about which he had felt and spoken strongly, one begins to appreciate the courage, conviction, firmness, fairness and integrity with which he dispensed justice. Oputa as a judge was known to listen; analyse and synthesise; he possessed the instinct for the right call; and was harmed with the most effective communication in accessible reasoning and language. He exemplified that “passive habit and self-restraint” which according to Glanville Williams, is the fundamental feature of the English Judicial System.” It is said, and even the late Harold Laski conceded, that in every age and clime, the temper of the judiciary varies with the prevailing social and political circumstances. From history, we find records of battles fought by eminent Judges throughout the centuries-battles vigorously waged against actions which the judges regarded as a trespass on the Law; battles which revive our veneration for such men as Gascoigne, who fearlessly committed prince Hal for contempt, and Coke who uncompromisingly proclaimed that the king could not alter the law. That spirit is highly desirable in our country. Oputa was a very courageous judge who stood firm against tyranny and oppression from the government. Both at the bar and on the bench, one cannot speak of the rule of law without mentioning the locus classsicus on the principle of law being a respecter of nobody. In Military Governor of Lagos State v Odumegwu Ojukwu (1986) 11 NWLR (Part 18) 621. Oputa said: “In Nigeria, even under the military government, the law is no respecter of persons, principalities, governments or powers and the courts stand between the citizen and the government to see that the state is bound by law and respects the law”. Also in Federal Civil Service Commission V Laoye (1989) 4 SCNJ (Part 11) 146, 179 Oputa emphasised the need for equal justice under law: “Justice has never been a one-way traffic. It has two scales and weight. Justice is also depicted as blind. It neither sees nor recognizes who is a government functionary and who is not. It is not a respecter of persons or institutions, no matter how highly placed these are”. An erudite scholar with a sound mastery of the law, Oputa laid a solid foundation for his

www.esqlaw.net

judicial career and this was epitomised in his landmark definition of the concept and meaning of 'Estoppel' in Okafor v Onuigbo & Ors: “Estoppel is a rule of evidence. It is no other than a bar to testimony. Its sole aim is either to place an obstacle in the way of a case which might otherwise succeed, or to remove an impediment out of the way of a case which might otherwise fail. To use the language of naval warfare, estoppel must always be either a mine layer or a mine sweeper… not being a rule of substantial law, it cannot therefore declare on immediate right or claim, although when properly used it can gravely affect substantive rights.” In ALHAJI UMARU ABBA TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) LPELR-3272(SC) Oputa reiterated the power of judges to determine jurisdiction issues when he said: “The incompetence of the court to entertain and determine the principal question is enough to nullify the whole proceeding and judgment as there is no room for half judgment in any matter brought before the court. It is a fundamental principle that jurisdiction is determined by the Plaintiffs claim [Izenkwe v. Nnadozie 14 W.A.C.A. 361 at 363 per Coussey, J.A.; Adeyemi v. Opeyori (1976) 9-10 S.C. 31 at 51]. In other words, it is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court. [See Western Steel Works v. Iron and Steel Workers (1987) 1 N. W. L. R. (Pt. 49) 284.] Judges have no duty and indeed no power to expand the jurisdiction conferred on them but they have a duty and indeed jurisdiction to expound the jurisdiction conferred on them. [See The African Press of Nigeria and Ors. v. The Federal Republic of Nigeria (1985) 1 All N.L.R. 50 at 175; (1985) 2 N.W.L.R. (Pt.6) 137 at 165.] In the process of expounding the jurisdiction conferred on them the courts have always emphasised the need to decline jurisdiction where its exercise will determine issues it has no jurisdiction to hear and determine.” EsQ legal practice I 12

On the legal principle of Res Judicata, Oputa averred in Iyajji v. Eyigebe (1987) NWLR (Pt. 61)523 that, "The legal principle of res judicata as enunciated and contained in the famous opinion of the judges delivered by De Grey, C.J. in the equally infamous case of the Duches of Kingston 20 St Tr 537: 2 SmLC 13th Ed p. 644: (1775-1802) All. E.R. Rep 623 was that "Judgments upon the same manner and between the same parties were as a plea a bar and as evidence conclusive". The rule is a limitation of estoppel per rem judicatam to parties and their privies and it is an affirmation of the maxim res inter alias acta alteri nocere non potest. Simply put the rule means that a final judgment already decided between the parties or their privies on the same question by a legally constituted Court having jurisdiction is conclusive between the parties and the issue cannot be raised again. Once the judgment is final it is conclusive proof in subsequent proceedings (other than an appeal or a retrial) between the same parties or their privies of the matter actually decided." Per OPUTA, J.S.C. (P. 21, paras. C-G) As a legal

www.esqlaw.net

practitioner, Oputa counselled lawyers to actively get involved in the affairs of the state and assist the society by being the guardians for posterity. In his book Conduct at the Bar: The Unwritten laws of the Legal Profession, Oputa J. (As he then was) asked, “is the duty of enabling every country to promote its own development in the frame work of co-operation, free from any intention or calculated aim of domination, whether economic, or political not an integral part of Justice?” “The lawyer of today owes important obligations not only to his client, or to the court or to the administration of justice but also to the government and to society as a whole.”… “The lawyer cannot anymore remain a stranger to important developments in the economic and social affairs of his country. He should take an active part in the process of change. It is essential that the highest skills of the legal profession should be available to the individual, to the government and to the community. Lawyers have a duty to be active in law reform. In a developing country like

ours where public understanding is slight, the knowledge of the lawyer is of considerable importance, especially in reviewing proposed legislations and in promoting and inspiring respect for the Ruler of Law and the appreciation by the citizen of his rights under the law. The lawyer should therefore be the watch dog of the community, a determined fighter for the freedom and the rights of man.” While it is true that widespread corruption and attitudinal problems had bred institutionalized inefficiency and indolence and poverty in Nigeria today, lack of continuity of government programmes had also disrupted some past laudable programmes and policies which if allowed to run their full course would have brought about mean

ingful development in the country. Identifying lack of continuity in government policies as the bane of development in Nigeria, in F.C.S.C. v. Laoye (1989) 2 NWLR (Pt.106) 652) Oputa said, "The government of any country is or should be a continuing process. Even when and where a new Constitution has been promulgated, special provisions are usually made to preserve continuity. A new Constitution does not create a tabula rasa. It normally makes a provision to cover, protect and preserve existing laws, offices and institutions.” The judge is universally accepted to be a part and parcel of the paraphernalia of the political system. More than that, he determines whether the system of justice balances effectively the ever conflicting interests of the various and diverse components of the society. He is “learn ed” in the

EsQ legal practice I 13

law, which he applies firmly but with compassion. He is short, tall, thin, fat, black, and white. He is a husband or wife, a father or mother, a tenant or landlord, in short, he is human. He tries to measure up. (as best as he could in the face of many odds) to the set ideals of justice albeit falling short now and again. In performing this herculean task of delivering justice, his life and personal experience plays a very important role. As a devout catholic with strong respect for the sanctity of marriage and the care of children, Oputa through his judgements counselled parents to always put the interest of their children at the front before allowing ego and anger tear their marriages apart. In Okafor v Okafor, he said: “Both parties claim the custody of this child…and both are very anxious to have the custody. If the parties to a marriage give enough thought to the problems a broken marriage may do and or pose to the issues (children) of that marriage and are prepared to swallow some of their pride and thus become less selfish, then there will definitely be a marked decrease in the divorce rate and its consequents broken homes. But experience has shown that parties show more interest in the custody of their children, a custody which should never have been in issue had the marriage survived”. Both at the bar and on the bench, Oputa's life serves as a lesson to lawyers in their attitude to cases which they handle for clients. According to him, “A lawyer owes himself a duty to participate and not be partisan in the case he is handling. … He should not be too personally or emotionally involved in a case he is merely called upon to advocate.” in Okpara v Obi Oputa JSC reminded counsels to always remember that there primary duty to the court is to see that justice is done between litigants. “Rather than helping to narrow the issues to be contested at the trial, counsel nowadays, use pleadings to becloud the issues. The defendant's pleading put the plaintiff to the “strictest proof” of every allegation of fact made in his statement of claim. That may be permissible

www.esqlaw.net

but the party who wants proof submission that its previous of the obvious, or proof of decision or decisions were what should have admitted, wrong and should be overruled. In fact, the Court must be prepared to pay for welcomes any opportunity to such proof.” This dictum is in consonance review any decisions given with the memorable words of per incuriam.' It is far better to Crampton J. in R. v. O'Connell admit an established mistake (1844) 7 lr. L.R. 261: where he or and correct same rather laid down the forensic duty of than persevere in error. the advocate and stated, “This Justices of the Supreme Court court in which we sit is a are human-beings capable of temple of Justice; and the erring. It will be short-sighted advocates at the Bar, as well as arrogance not to accept this the Judge upon the Bench, are obvious truth." PER OPUTA equally ministers in that J.S.C. (Pp. 86-87, Paras. G-A) temple. The object of all equally should be the On the finality of the decisions attainment of Justice… slow of the Apex court, Oputa said and laborious and perplexed in Adegoke Motors v and doubtful in its issue that Adesanya (1983) 3 NWLR (Pt pursuit often proves; but we 109) 250 @ 274-275, that: We are all judges, Jurous, are final not because we are advocates and Attorneys infallible; rather we are –together concerned in this infallible because we are final. search for truth: The pursuit Justices of this Court are is a noble one, and those are human-beings, capable of honoured who are then erring. It will certainly be instruments engaged in it”. short sighted arrogance not to This same sentiment has accept this obvious truth. It is always been expressed by also true that this Court can many other forthright judges do inestimable good through against counsels' attitude its wise decisions. Similarly, aimed at frustrating the cause the Court can do incalculable of justice. In KAYCEE harm through its mistakes. (NIGERIA) LIMITED VS When therefore it appears to PROMPT SHIPPING learned counsel that any CORPORATION LIMITED decision of this Court has been Owolabi Kolawole JCA as he given per incuriam, such then was said. “I agree one counsel should have the reason why trials are unduly boldness and courage to ask prolonged in many of the high that such a decision be overcourts are the attitude of ruled. This Court has the counsel who settle pleadings. power to over-rule itself (and There are certain material facts has done so in the past) for it which ought to be admitted by gladly accepts that it is far counsel for the defendant but better to admit an error than which learned counsel would to persevere in error. deny. Evidence which need not be called is then called; In the locus classicus of Garba time wasted; cost is increased v University of Maiduguri and justice delayed… In the which deals with the issue of second century of the legal Right to fair hearing, Oputa profession in Nigeria, I believe said: “God has given you two that the legal profession ought ears. Hear both sides” to turn a new leaf. When Also in Otapo V Sunmonu matters are admitted, the plain (1987) 2 NWLR Part 58 at Page fact is not that the claim is 587 he stated as follows admitted; upon the admitted “A hearing that is tantamount facts the real points of law to a travesty of justice cannot which in counsel's opinion are by any stretch of imagination of such weight should be be described to be fair, for canvassed. Costs would be justice herself is fair and even saved, time would be saved, handed. The Almighty God patience would not be gave us both ears so that we exhausted and justice would hear both sides. To hear one be done according to Law”. side of a dispute and refuse to On the Attitude of Supreme hear the other is a flagrant Court to its previous violation of the principles of judgments, (F.C.S.C. v. Laoye eternal justice”. (1989) 2 NWLR (Pt.106) 652) The Psalmist said, “Seventy "This Court does not show any years is all we have. Eighty antipathy towards any years if we are strong.

Whatever the circumstances, it will be over at last and we are gone” Psalm 90: 10. Shakespeare also said Death is a necessary end; it will come when it will come. Julius Caesar. Act 1 Scene 2. No one can hold back his spirit from departing; no one has the power to prevent the day of his death, for there is no discharge from that obligation and that dark battle. On May 4, 2014, The Honourable Justice Chukwudifu Oputa JSC Rtd. quietly went home fulfilling one of the immutable laws of nature, that there is a debt that all mortals have to pay. Lurlen McDaniel said, “No one gets to predict their time to die, but living every day to the maximum is something we all must get to do. We are expected to pass through life but once. If therefore, there be any kindness we can show or any good thing we can do to any fellow being, let us do it now, for we shall not pass this way again. Adieu Oputa of Oguta. Goodnight My Lord Justice.

EsQ legal practice I 14

D.C. LAW FIRMS LOOK TO AFRICA FOR NEW BUSINESS

uilding a hotel in Ethiopia. Writing contracts between African governments and petroleum producers. Bringing together public and private money to build sewers and roads.

where the firm has about 25 lawyers, and their backgrounds represent a snapshot of the kinds of legal work U.S. law firms are seeking in Africa.

McAllister, who chairs the group, is the former lead Opportunities for U.S. law lawyer of the U.S. Agency for firms to consult on projects in International Development African nations are growing, and helped author the law and companies here and that created the African abroad are increasingly Development Foundation, a turning to law firms to help do government program that deals, navigate regulations offers grants to groups that and develop infrastructure help create jobs and raise projects, say leaders of the income levels in Africa. new Africa practice group at Richardson, a former Williams Mullen. diplomat, represents developers that build In his first year, Ken Asbury transportation and other has made the largest acquisition in the contractor's infrastructure systems. Suarez specializes in import and history. export laws, an area of increasing importance as trade and investment between The Richmond-based law firm, a top 200 U.S. firm with African nations and the rest of about 250 attorneys, is one of a the world are poised to grow. handful of major U.S. law “The continent is becoming a firms that have recently fast-growing economy with a created practice groups middle class and tons of specifically to chase business opportunities for the U.S. and in Africa, which they see as Africa with trade, government the new frontier for U.S. relations and infrastructure companies to expand and projects,” McAllister said. invest because of a growing middle class there. Covington Several African countries — & Burling, the District's largest including Sierra Leone, Niger, law firm, last fall hired Witney Ivory Coast, Liberia and EthioSchneidman, a former adviser pia — are among the fasteston African policy to President growing in the world, Bill Clinton and President Obama, to launch its Africa initiative. Greenberg Traurig last year brought on Jude Kearney, a corporate attorney who led Patton Boggs' international business practice group, to develop Greenberg's Africa practice.

according to an April report issued by the World Bank. Excluding South Africa, the region's largest economy, GDP in sub-Saharan countries grew 5.8 percent in 2012, compared to global GDP growth of 2.3 percent.

has focused his practice on Africa for several years. As growth across the continent became more sustainable, more law firms began taking notice, he said.

“It used to be that New York and Washington firms might focus a bit on Africa, but now firms with any amount of The Obama administration substantial commercial last month announced an initiative, Power Africa, aimed activity, particularly in certain industries, have at least begun at expanding access to to consider Africa as a region electricity to 20 million new of activity,” Kearney said. “If households in Ethiopia, you're a firm with clients that Ghana, Kenya, Liberia, are internationally active, Nigeria and Tanzania. The you'd have to be almost initiative will be funded largely by government-backed willfully ignoring Africa not to lenders, but opens the door for focus on it. The time is now.” law firms — which advise on Oil and gas, mining and virtually every part of new infrastructure “are all very infrastructure projects — to busy sectors because that level pick up new business. of development is necessary for Africa to reach its full potential,” Kearney said. “So “Energy is the biggest ticket law firms and other service item that connects all of providers who are focused on Africa,” said Richardson, who those sectors, or who have spent a year advising the clients focused on those Kenyan government on sectors, are rightfully infrastructure finance during a interested in what's going on year-long sabbatical funded in Africa. There is probably by the Treasury Department. more activity in Africa in some “There is a lot of diversity of those sectors than any other across Africa, but the one place in the world right now.” thing they have in common is they're short on energy.” Kearney, who leads the Africa group at Greenberg Traurig,

Williams Mullen formed its Africa group in December under the leadership of veteran lobbyist Singleton McAllister, infrastructure finance lawyer Lloyd Richardson and trade specialist Evelyn Suarez. The trio is based in Washington,

www.esqlaw.net

EsQ legal practice I 15

THE GLOBAL AFRICAN INVESTMENT SUMMIT

etween 20th and 21st October, 2014, 4 African Presidents as well as 20 ministers and agency CEOs from Ghana, Uganda, Rwanda and Tanzania will converge at the Savoy, London to present present bankable projects to 500 business leaders from across the globe. The projects will span the Energy (Power), Oil and Gas, Mining, Transport, Infrastructure and Agri-business.

According to the organisers, the ∙ His Excellency Paul Kagame, Presidents and countries at the 2014 President of the Republic of Summit already planned to attend Rwanda include: The event which has the full backing of the Organisation for His Excellency John Dramani, Economic Development, The President Republic of Ghana United Nations Economic ∙ His Excellency Yoweri Kaguta Museveni, President Republic of Commission for Africa, NEPAD and the United Stated Energy Uganda Association and is supported by the ∙ His Excellency Jakaya Kikwete, Law Society. President United Republic of Tanzania

PAN AFRICA LEGAL MARKET VISIT TO LONDON

he Law Society of England and Wales will be hosting a multi-jurisdictional trade mission of African law firms to the UK between 7-10 July. The application process is now open for law firms from across Africa to join the delegation.

the legal sector. Demand for specialised local knowledge and legal counsel has never been greater.

London. The programme will include:

∙ Firm profile in a mission brochure

∙ Support of a Law Society ∙ Attendance at the Law market visit coordinator Society's annual According to the organisers, International Marketplace participation in this delegation 2014 will raise law firm's profile, ∙ Industry leaders roundtable develop far-reaching international business ∙ Networking reception opportunities across Africa, specifically targeted at firms Alongside the rapid economic Europe and beyond enabling and clients relevant to your growth experienced in many lawyers to explore the many business African jurisdictions over the opportunities for law firms in ∙ Participation and speaking past decade has been the the world's leading opportunities parallel exponential growth of international legal hub,

16 I EsQ legal practice

www.esqlaw.net

MOROCCO SELLS 1 BILLION EURO BOND AS BORROWING COSTS FALL

orocco sold its first eurodenominated bonds in four years after yields fell to all-time lows and stimulus measures in Europe help boost demand for riskier assets.

last week. The ECB took its deposit rate negative, helping demand for higher-yielding assets. “ECB actions are definitely positive for the market,” Will Nef, who helps manage $3 billion in emerging-market bonds at Union Bancaire Privee in Zurich, said by email. “215 basis points looks relatively generous. People are chasing anything that is yielding something given that developed rates in euros have come off so much.”

Morocco's economic growth may slow to 3.5 percent this year, Boussaid said, the second time in a month the net oil importer trims growth forecasts amid growing turmoil in the region.

hurt by a spending spree that helped the longest serving Arab monarchy contain a wave of revolts that hit the Arab world.

Boussaid maintained the budget deficit target for 2014 at 4.9 percent compared with The $105-billion economy added 4.8 percent in 2013 after 5.5 percent in 2013. He said the deficit is forecast to fall to The government issued 1 a better cereals harvest than 3 percent by 2017. Morocco is billion euros ($1.4 billion) of this year's. The government a net oil and gas importer and 10-year bonds at 215 basis budgeted a 4.2 percent its 2014 budget was based on points above midswaps, the expansion in gross domestic country's Economy and product for 2014. On May 16, an oil price of $105 a barrel. Finance Minister Mohamed Budget Minister Driss El Besides the 1 billion euros it Boussaid said in an interview Azami El Idrissi said GDP raised from yesterday's bond yesterday. The yield on growth would be about 4 BNP Paribas SA, sale, Rabat expects the 1.5 Morocco's October 2020 debt percent. Commerzbank AG and billion euros in outstanding has dropped 124 basis points Natixis managed the The government plans to axe external financing needs for year to 3.06 percent, within Moroccan debt deal, the first 2014 to come from subsidies on widely-used five basis points of record low in euro-denominated bonds diesel fuel as of 2015 while international financial on May 30. since the nation sold 1 billion keeping them for cooking gas, organizations including the euros of fixed-income sugar and wheat flour, The North African country World Bank, the Arab securities in September 2010, Boussaid said. joins Emirates Monetary Fund, the European according to data compiled by Telecommunications Corp. Investment Bank and the The government has taken the and Turkiye Vakiflar Bankasi Bloomberg. Islamic Development Bank, boldest steps to date among in tapping international Boussaid said. peers in the region in markets after the European dismantling subsidies as it Central Bank cut interest rates Slowing Growth sought to fix public finances

www.esqlaw.net

EsQ legal practice I 17

INDIAN SUPREME COURT GIVES FURTHER REASSURANCE ON THE LIMITS OF ITS JURISDICTION IN CASES OF ARBITRATION SEATED OUTSIDE INDIA

n a welcome addition to the recent suite of proarbitration decisions emanating from India, in the case of Reliance Industries Limited & Anr v Union of India, the Supreme Court of India overturned the decision of the Delhi High Court and confirmed that in circumstances where an arbitration is seated outside of India and the parties have expressly chosen a foreign law to govern the arbitration agreement, notwithstanding

18 I EsQ legal practice

the choice of Indian substantive law, the Indian courts do not have jurisdiction to set aside an arbitral award. The decision, which is relevant to all agreements from the preBALCO era, limits the circumstances when the Indian courts can intervene in the context of foreign seated arbitrations.

Background

ONGC (an Indian state-owned company), Reliance Industries Limited (Reliance) and BG Exploration and Production India Limited for the exploration and production of petroleum. A dispute arose from the terms of the contract concerning the payment of royalties, cess and service tax. Reliance issued a notice of arbitration in December 2010 and the arbitral tribunal was constituted in July 2011.

Two production sharing The contracts were governed contracts were entered into by:

by Indian law but contained arbitration clauses which stated that they were governed by the laws of England. It was agreed that the seat of arbitration would be London. The tribunal made a Partial Final Award in September 2012 concluding that Reliance's claims were arbitrable and rejected Union of India's arguments to the contrary. Union of India challenged this award before the Delhi High Court pursuant to the provisions of

www.esqlaw.net

Section 34 of the Indian interpreted in accordance with Arbitration Act 1996 (the Act). the laws of India and could See our previous post here. not be performed in a manner which would contravene the laws of India. Union of India Law governing Pre-BALCO argued that, therefore, Indian Agreements law (including Part I of the Act The arbitration agreement that – which provides Indian was considered in the present courts supervisory jurisdiction case was executed prior to the over arbitrations) could not have been excluded by the Supreme Court's landmark decision in BALCO i.e. prior to parties. Since Part I of the Act includes the Indian courts' 6 September 2012. (We have considered this dual approach power to set aside arbitral awards, Union of India argued to pre- and post-BALCO that the Delhi High Court had contracts in our earlier blog jurisdiction to set aside the post here). In summary, the ruling of the Supreme Court in Partial Final Award issued by the tribunal seated in London. BALCO – which held that Indian courts do not have Reliance argued that by supervisory jurisdiction over choosing English law to foreign seated arbitrations – govern their arbitration does not apply to arbitration agreement and expressly agreements executed prior to 6 agreeing that London was to September 2012. The position be the seat of arbitration, the in respect of such agreements parties had excluded the is that Indian courts may application of Part I of the Act. exercise supervisory The Delhi High Court upheld jurisdiction over all arbitrations including foreign the contention of Union of India and held that there was seated arbitrations with a no express or implied nexus to India unless: exclusion of Part I of the Act. It  Parties had expressly held that an award which is chosen not to vest the said to be against public court with such policy can be challenged in supervisory jurisdiction (usually by clarifying that India even though the seat of arbitration is outside India. Part I of the Act – which provides for such supervisory jurisdiction – does not apply); or  It was apparent from all of the facts and circumstances of the case that the parties had impliedly excluded the jurisdiction of the Indian courts.

Decision of the Delhi High Court Against this legal and factual background, Union of India made reference to the fact that the relevant contracts containing the arbitration agreement were signed and executed in India, their subject matter was situated in India, they were to be governed and

www.esqlaw.net

The court also held that since the substantive law of the contract was Indian law, it was more appropriate for the Indian courts to have supervisory jurisdiction over setting aside proceedings – even if the courts in London had supervisory jurisdiction over the arbitration during the pendency of the proceedings.

The Decision of the Supreme Court The Supreme Court confirmed that as the decision in BALCO applied prospectively only, it was bound by the pre-BALCO jurisprudence. However, the Supreme Court held that as the arbitration agreement was governed by

English law and since the parties had agreed that the juridical seat of the arbitration was London, the parties did expressly agree to exclude Part I of the Act. In arriving at this conclusion the court also made reference to the fact that the arbitration agreement allowed the Permanent Court of Arbitration at Hague to be approached for the appointment of an arbitrator instead of the Chief Justice of India and the arbitration proceedings were conducted in accordance with the UNCITRAL Rules. The Supreme Court relied on its prior decision in Videocon Industries Ltd v Union of India & Anr (Videocon), a legally and factually similar case,in which it was held that where an arbitration agreement was governed by English law, this necessarily implied that the parties had intended to exclude the provisions of Part I of the Act. The Supreme Court rejected Union of India's argument that Part I of the Act could not be excluded for public policy reasons as the performance of the contractual obligations in dispute would not lead to the infringement of any laws of India per se and there was no danger of violation of any statutory provisions.

arrived at a decision that would lead to “the chaotic situation where the parties would be left rushing between India and England for redressal of their grievances“. In conclusion, the Supreme Court held that the provisions of Part I of the Act had to be excluded as they were “wholly inconsistent” with the arbitration agreement that is governed by English law. As a result, any challenge to an award rendered in the arbitration proceedings would be subject to the provisions of the English Arbitration Act 1996.

Comment

The Supreme Court's decision is a welcome clarification of the extent to which the Indian courts have jurisdiction over arbitrations seated outside India. The High Court's decision had widened the degree to which the Indian courts could be invited to interfere with foreign seated arbitrations. It raised serious concerns and was widely criticised. The Supreme Court's decision has now restored the Indian courts' cautious approach to jurisdiction over foreign arbitrations even for preBALCO agreements. In this regard, it follows a more The Supreme Court also general pro-international rejected the Delhi High arbitration trend from the Court's suggestion that Indian courts, to which the different courts may have High Court's decision was an supervisory jurisdiction exception. For investors with depending on the stage at arbitration agreements that which the supervisory courts were entered into before 6 were approached. The court held that applicability of Part I September 2012 and to which, of the Act is not dependent on therefore, the BALCO decision the nature of challenge to the does not apply, the Supreme Court's decision will surely be award. The Supreme Court found that the High Court had a welcome one. failed to distinguish between the law applicable to the contract and the law applicable to the arbitration, ignored the severability of an arbitration agreement from the substantive contract and EsQ legal practice I 19

EGYPT PREVAILS ON FORK-IN-THE-ROAD PROVISION

In an unpublished ICSID decision last month (the Decision), reported in Global Arbitration Review and Investment Arbitration Reporter, the Arab Republic of Egypt (Egypt) successfully knocked out the majority of claims brought by California-based H&H Enterprises Investments (H&H) by way of jurisdictional arguments based on the â&#x20AC;&#x153;fork-in-the-roadâ&#x20AC;? provision contained in the US-Egypt bilateral investment treaty (the BIT).

ork-in-the-road provisions in BITs generally limit an investor to choosing only one of a number of agreed dispute resolution procedures. For example, if an investor submits its dispute to the local courts, then a fork-inthe-road provision would 20 I EsQ legal practice

prevent the investor from also pursuing other dispute resolution procedures under the BIT, such as international arbitration. In the absence of a fork-in-the-road provision, submission of a dispute to local courts will not preclude the investor from pursuing other dispute resolution

options. It is thought that this is only the second BIT claim to be denied jurisdiction on the basis of a fork-in-the-road provision. It serves as a reminder to investors with potential contractual and international law claims to consider carefully the

provisions of the relevant BIT before beginning proceedings in any forum. The dispute concerns a long term management and operation contract concluded in 1989 between H&H and Grand Hotels of Egypt (GHE) regarding the Ain El Sokhna Hotel on the Gulf of Suez in Egypt (the Resort). In October 1993, GHE commenced arbitration against H&H in Cairo under the contract, seeking termination of the contract (the Cairo Arbitration). H&H filed a counterclaim in the Cairo

www.esqlaw.net

Arbitration. An award was rendered in the Cairo Arbitration and was partly in H&H's favour. Following the Cairo Arbitration, H&H issued a series of claims before the local courts in Egypt (the Domestic Litigation). At the end of 2001, H&H was evicted from the Resort. In July 2009, H&H brought ICSID proceedings against Egypt under the US-Egypt BIT, claiming that Egypt had breached various provisions of the BIT, including those concerning fair and equitable treatment, expropriation and

www.esqlaw.net

full protection and security. H&H also made denial of justice and denial of effective remedies claims in relation to the Domestic Litigation. Egypt objected to the Tribunal's jurisdiction on various bases, including the fork-in-road provision in the BIT. Egypt argued that the fork-inthe-road clause was triggered when H&H filed a counterclaim in the Cairo Arbitration and when it filed its claims in the local courts of Egypt. H&H submitted that the fork-in-the-road provision had not been triggered

because it claims had been “pursued in the local fora, on the one hand, and the claims pursued in the present arbitration on the other hand do not meet the triple identity test . . . that even though the local proceedings and this arbitration involve the same parties, the causes of action are not the same, as the present arbitration involves treaty claims and not contract claims.” H&H also argued that the relief being sought was different. In a June 2012 decision on Egypt's objections to jurisdiction, the Tribunal, comprised of Hamid Gharavi and Veijo Heiskanen and chaired by Bernardo Cremades, rejected most of Egypt's objections. However, on the issue of the BIT's forkin-the-road provision, the Tribunal stated that it was “of the view that the allegations related to the fork-in-the-road clause are closely related to the merits of the case. The Tribunal considers that ruling on this matter requires a more thorough analysis of the claims and the merits of the dispute.” Accordingly, the Tribunal decided to join its decision on the fork-in-the-road objection to its decision on the merits. Last month's Decision on the merits found in Egypt's favour on all of the remaining issues, including in respect of the fork-in-the-road provision. We understand that the Tribunal declined jurisdiction over the majority of H&H's claims because it considered that the fork-in-the-road provision of the BIT had been triggered by H&H when it submitted its claims with the 'same fundamental basis'to the Cairo Arbitration and the Domestic Litigation. This Decision is only the second case in the public

domain in which a tribunal has declined jurisdiction on the basis of a fork-in-the-road provision. In the 2009 case of Pantechniki SA Contractors & Engineers v Republic of Albania (ICSID Case No ARB/07/21) regarding the Greece-Albania BIT, Jan Paulsson as sole arbitrator found that the investor's claims were precluded from being heard by an ICSID tribunal because they arose out of the same alleged entitlement to payment for contractual losses that the investor had already brought before the courts in Albania. The relevant test as applied by Paulsson was “whether or not the 'fundamental basis of a claim' sought to be brought before the international forum is autonomous of claims to be heard elsewhere. . . [t]he key is to assess whether the same dispute has been submitted to both national and international fora.”

EsQ legal practice I 21

TANZANIAN COURTS INJUNCT ICSID PROCEEDINGS On 23 April 2014, the Tanzanian High Court ordered both parties in ongoing ICSID arbitration proceedings, Standard Chartered Bank (Hong Kong) Limited (SCB HK) and the Tanzania Electric Supply Company (Tanesco), to refrain from “enforcing, complying with or operationalising” a decision made by the Tribunal in those ICSID proceedings on 12 February 2014.

his injunction was granted on an exparte basis. It is a clear breach of the ICSID Convention and of Tanzania's international law obligations. If it is not reversed, it will be of significant concern to other international investors in Tanzania, and will likely discourage new investment. One of the key advantages of the ICSID system is that it is self-contained and is intended to be insulated from interference by local courts. This is made clear throughout the ICSID Convention, to which Tanzania is a party. Of most immediate relevance, the ICSID Convention provides that:  consent to ICSID arbitration is “… deemed consent to such arbitration to the exclusion of any other remedy” (Article 26); and  an ICSID Tribunal is “the judge of its own competence” (Article 41(1)).

22 I EsQ legal practice

Any attempt by Tanzania to punish a breach of its injunction would fall foul of ICSID Convention Articles 21 and 22 which give immunity from legal process to parties, lawyers and witnesses involved in ICSID proceedings. The ICSID proceedings between SCB HK (represented by Herbert Smith Freehills) and Tanesco were commenced in 2010, and were brought pursuant to a Power Purchase Agreement relating to a power plant at Dar Es Salaam, Tanzania. SCB HK brought the ICSID arbitration as assignee of the agreement. The arbitration relates to the tariff payable under that agreement. In the Power Purchase Agreement, Tanesco consented to ICSID arbitration. In a related agreement, the Government of Tanzania itself expressly approved Tanesco's consent to ICSID arbitration. After a lengthy process, in its

“Decision on Jurisdiction and Liability” of 12 February 2014 the Tribunal (i) concluded that it had jurisdiction over the dispute, (ii) made a number of findings on the merits of the dispute and (iii) ordered the parties in the light of its findings to renegotiate the disputed tariff. The ex-parte injunction of 23 April 2014 seeks to prevent the implementation of this decision and continuation of the ICSID proceedings. It is a clear breach of the provisions of the ICSID Convention highlighted above. As such the actions of the Tanzanian High Court (which forms part of the Tanzanian State for the purposes of international law) put Tanzania in breach of its international law obligations. If the injunction is not lifted, two potentially serious consequences arise for Tanzania: First, Tanzania would be in continuing breach of the ICSID Convention. Tanzania

www.esqlaw.net

has consented to any disputes concerning the Convention itself being resolved by the International Court of Justice. Any other state party to the ICSID Convention could therefore commence proceedings against Tanzania at the International Court of Justice. Second, it may have serious implications for investment into Tanzania. In the past, Tanzania's membership of ICSID as well as its network of bilateral investment treaties has provided considerable comfort and assurance to investors into Tanzania. Indeed, the Tanzania Investment Centre's

www.esqlaw.net

Investment Guide refers to its membership of ICSID as an investment guarantee, and Tanzania's Investment Act states that investment disputes may be referred to ICSID. Investors commencing arbitration proceedings against states tend to understand that enforcement of any award may take some time, even though the ICSID Convention sets up a system of recognition and enforcement of award that sits outside the New York Convention system and is generally seen as being even more effective. That is why most ICSID awards are eventually settled. However

investors will be concerned that the Tanzanian injunction could spark a worrying trend. States have rarely if ever tried in the past to prevent ICSID arbitrations by issuing injunctions in the local courts, as the consequences for global trade and the international rule of law are seen as being too serious. Such injunctions carry no legal force in any country that has signed up to the ICSID Convention and accordingly the benefit to a state of issuing such an injunction will rarely if ever justify the difficulties that will be caused by a flagrant breach of the ICSID regime involved in issuing the injunction in the

first place. If investors understand that the Tanzanian courts are prepared to ignore the provisions of the ICSID Convention and Tanzania's international law obligations and injunct the ICSID process, Tanzania's membership of ICSID will provide limited if any comfort. This may have serious consequences for Tanzania at a time when it is seeking foreign investment to develop its energy market, and seeking to raise finance on the international markets.

EsQ legal practice I 23

ICAMA CHARTS FUTURE FOR ARBITRATION IN AFRICA

oremost arbitration centre in

Africa, the International Centre for Arbitration and Mediation, Abuja (ICAMA) recently collaborated with

the Ministry of Justice to chart the path for growing practice of arbitration in Africa. The two-day event in Abuja provided an opportunity for the stakeholders in attendance to celebrate the successes of arbitration in Africa, dissect the challenges facing it and project its prospects as arbitration takes firmer root in law practice in the continent. Given the growing popularity of arbitration in Nigeria and the leading role ICAMA has been playing, the gathering was of who-is-who in the legal circle in Nigeria, with their 24 I EsQ legal practice

Legal pundits have argued that there is the need for stakeholders to articulate the advantages of arbitration in resolving disputes and the imperative of making use of arbitration centres in Nigeria and other African countries. TONY AMOKEODO reports. counterparts in other parts of the world joining them to speak to a fitting theme “Promoting Arbitration in Africa.” ICAMA Chairman and Convener of the roundtable, former Attorney General of the Federation (AGF) and Minister of Justice, Chief Bayo Ojo (SAN) while welcoming participants to the first biannual roundtable noted that, “The dilemma facing arbitration in Africa is that most disputes, even those involving African states or parties, are arbitrated in the major cities of the West. Most contracts choose London, Paris or New York as the venues for arbitration. Even

when domestic venues are chosen, which is rarely, Western rules and arbitrators are almost always chosen. This does little to promote the African cities as arbitral venues”. The Attorney-General of the Federation and Minister of Justice, Mohammed Bello Adoke (SAN) in his admonition to the gathering, urged the participants to proffer workable solutions to the myriad of challenges facing arbitration in the continent, while pledging government of Nigeria's deep commitment and interventions when and as required.

www.esqlaw.net

inconsistent with the purpose of the Convention and a barrier to the effective and speedy enforcement of arbitration awards, for An arbitration expert, Jimmy He concluded by saying, “I example, if a small part of a Muyanja speaking from have drawn on experiences large award was challenged, Uganda perspective, noted within Africa to show the with the effect that the that Ghana and Kenya had wealth of material of the application of the entire award gone a step further by diverse approaches to court was suspended (see National including customary law intervention. I hope you agree Nigerian Petroleum Corporation under the purview of with me that the overall thrust v IPCO (Nigeria) Ltd [2008] arbitration, with Ghana of all these initiatives is to put EWCA Civ 1157).” having an impressive 25 arbitration on the centre stage Speaking on the American sections in the Part III of the and most beneficial for the experience, he stated that “The Act, while Kenya on the other users. US Supreme Court has also hand, entrenched applicability In a paper delivered by Prof. noted the pro-enforcement of arbitration by recognising it Khawar Qureshi QC, from nature of the New York as constitutional right. United Kingdom, he noted Convention. In Scherk v. On the usual collision of that “the English courts have Alberto-Culver Co., 417 U.S. Doyens of arbitration in legislation in the application refused to take an “all or 506, 520 n. 15 (1974), the Nigeria like former Lagos of arbitration, he informed nothing” approach to the Supreme Court held “the goal State Attorney-General and that African countries are enforcement of awards, and of the [New York] Convention, Commissioner for Justice, Mrs applying different solutions, will allow for recognition and and the principal purpose Hairat Balogun SAN, former with Uganda and Kenya enforcement of all or part of underlying American Attorney-General of the opting to enact specific an award. The rationale for adoption and implementation Federation and Minister of subsidiary legislation this is given on the grounds of it, was to encourage the Justice, Alhaji Ibrahim addressing court procedure, that the alternative would be recognition and enforcement Abdullahi (SAN) were on Given the important roles that judges play in arbitration, senior justices like the President of the Court of Appeal (PCA), Justice Zainab Bulkachuwa, Chief Judge of Lagos, Justice Ayotunde Philip, Justice Edward Torgbor from Kenya among others chaired different sessions where germane questions were posed by participants who were made of senior lawyers like Chief Duro Adeyele (SAN), Mr. Babtunde Belgore (SAN) and judges like the Chief Judge of Kogi State, Justice Nasir Ajanah and Justice Folashade Ojo.

www.esqlaw.net

ground to deploy their wealth of experience in tackling posers raised by the participants.

with the effect, being to inhibit application of the generic law of civil procedure code to arbitration cases.

EsQ legal practice I 25

of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.” “In Bergesen v. Joseph Muller Corp., 710 F.2d 928 (2d Cir. 1983), the Second Circuit, in interpreting the meaning of foreign awards, held that it preferred a “broader construction because it is more in line with the intended purpose of the treaty, which was entered into to encourage the recognition and enforcement of international arbitration awards.” Fedelma Claire Smith, from Netherlands and Legal Counsel, Permanent Court of Arbitration, spoke extensively on the fate of the New York convention, emphasising that its objectives were to make “States parties to avoid discrimination against foreign and non-domestic arbitral awards, States Parties to ensure such awards are recognized and generally 26 I EsQ legal practice

capable of enforcement in their jurisdiction in the same way as domestic awards and National courts of States Parties to give full effect to arbitration agreements by denying the parties access to court in contravention of their agreement to refer the matter to an arbitral tribunal.”

instead of complaining about neglect. He listed what they must ensure to be there, which included, “Conducive legal frame work, supportive crop of trained and qualified personnel to serve as arbitrators, mediators, conciliators, experts, transcribers, etc, top class hotels with modern facilities. Speaking on the final stage of e.g. Recreational, conference, award, she submitted that telecom, etc, “Before signing any award, Regional/National institutions the arbitral tribunal shall and professional groups with submit it in draft form to the primary focus to train, Court. The Court may lay disseminate information and down modifications as to the knowledge of arbitration law form of the award and, and practice, security/political without affecting the arbitral stability, Infrastructure, strong tribunal's liberty of decision, and supportive judiciary and may also draw its attention to high ethical standards of points of substance. No award conduct of all participants, shall be rendered by the arbitrators, counsel, parties/ arbitral tribunal until it has respect for the process.” been approved by the Court as He pointed out that the forum to its form.” of choice in the Middle East is Sami Houerbi, from Tunisia Dubai due to easy and Director, Eastern connectivity, being a leading Mediterranean, Middle-East aviation hub with ease of visa and Africa, international procurement, while Singapore Court of Arbitration asked is forum of choice in Asia. Africa and Asia to make their The conference was not all continents attractive as favoured places of arbitration, about law and arbitration as

participants were treated to a night of buffet, wine, cultural dances and goodwill speeches, while a visit was also made to ICAMA headquarters at the Education Tax Fund (ETF) building, with all the participants acknowledging the centre as a world-class in all requirement and obviously primed to take arbitration to the next level in Africa.

www.esqlaw.net

BURUNDI'S ACCESSION TO THE NEW YORK CONVENTION, A CONFIRMATION OF THE AFRICAN TREND TO RELY ON ARBITRATION

n 9 May 2014, Burundi was the 151st country to sign the 1958 New York Convention on the recognition and enforcement of foreign arbitral awards. By acceding to the Convention, Burundi followed the footsteps of other African countries, being the 32nd African country out of 54 to adopt the Convention, thus lining up with the global arbitration expansion. Burundi only made one reservation to the Convention, commonly referred to as the “commerciality reservation”, pursuant to which the convention will only apply to disputes characterized as commercial under municipal law.

arbitration. Several arbitration centers were created in Morocco, Tunis, Cairo, Mauritius, Cameroun, Harare, Benin, etc… By signing the New York Convention Burundi expresses its determination to comply with international arbitration standards, sending a strong signal regarding the country's commitment to promote international arbitration.

Promoting arbitration to improve business Growth in economies of African Africa is opening up to international arbitration countries and the increase of foreign standards investments and cross-border Arbitration is becoming an essential instrument transactions highlight the need for to foster economic development in African predictable methods of dispute countries, which now have in majority resolution and the need for African legislation statutes on domestic and practitioners to take a more prominent international arbitration. However, significant role in international arbitration practice. differences remain between these countries in Adolphe Birehanisenge of the Burundian their approach to the resolution of Agency for the promotion of international commercial disputes. Investments recently told Global Inequalities show that some arbitration Arbitration Review that Burundi entry to regimes are outdated and therefore not the New-York Convention is “an adapted to keep up with modern practices. important step for the improvement of the business climate.” However, a movement of modernization is International commercial operators are also perceptible in other African countries: usually reluctant to arbitrate in In some jurisdictions, such as Namibia and jurisdictions that are not party to the South Africa, national court judges tend to New York Convention. Foreign issue arbitration-friendly judgments by businesses often prefer to trade with interpreting legislations that are out of step. entities in jurisdictions applying the In some countries, such as, for example, Convention knowing that local courts Morocco (see our posts here and here), will ensure the efficiency of arbitration Mauritius and Rwanda, legislators have agreements and enforce arbitral awards. recently updated their existing legislation Therefore, signing the Convention is a statutes on arbitration. means for African countries to establish a Some jurisdictions are taking part in both climate of confidence for investors and to regional and international organizations, promote international arbitration. including ICCA, OHADA, UNCITRAL, UNCTAD and the Permanent Court of Arbitration, promoting international

www.esqlaw.net

EsQ legal practice I 27

INTERNATIONAL ARBITRATION CONFAB HOLDS JULY IN LONDON

HE London International Commercial Arbitration Conference for West Africa Hilton Hotel, Canary Wharf, London holds on July 16-18, 2014 at the Hilton in Canary Wharf, London. This conference, now in its second year and rapidly becoming the 'must attend' event for those involved in international arbitration in West Africa, explores the London international commercial arbitration experience with particular emphasis on the perspective of the West African arbitration user in the transport, trade, infrastructure and energy sectors Speakers expected at the conference titled: 'International Arbitration Conference for West Africa', include the Attorney-General of the Federation, Mohammed

28 I EsQ legal practice

Adoke, SAN, Nicholas Chambers QC, Stephen Ruttle QC, Harry Matovu QC, all of Brick Court Chambers, London. Ms Mahnaz Malik, Arshard Ghaffar, both London- based commercial lawyers as well as Nigeria's Mr. Olumide Sofowora, SAN and Mr. Wale Atake.

throughout the West African region in the use of international arbitration and mediation as dispute resolution tools in large-scale International contracts. The conference fee includes the lectures, seminars, course materials, and refreshments an lunch over the duration of the conference. According to Kadiri Momoh, a The fee also includes on the first evening a champagne solicitor and principal of Mitchell Simmonds Solicitors, reception and dinner aboard a luxury cruise boat along the London and one of the River Thames. organisers, topical issues in international arbitration from According to Momoh, the city a London, international and comparative basis respectively of London is not just a legal centre, but also a global will be discussed. financial and commercial hub “A large contingent of the with a global appeal. “Very Nigerian judiciary is also recently, over 80 percent of expected at the event. Certificates of attendance and parties to arbitration at the Continuous Legal Educations London Court of International points will be awarded at both Arbitration (LCIA) were of non-UK origin. events. “ London remains the Momoh said recent years preferred seat of arbitration, have seen marked growth

favoured by nearly a third of respondents in a recent International Arbitration survey in which 710 responses were received and 104 individuals interviewed. However, there is competition from New York, Dubai, Singapore and Hong Kong, but London maintains its leading position.' He added

www.esqlaw.net

EsQ legal practice I 56

PCA HOLDS HEARING IN MAURITIUS

he Permanent Court of Arbitration (PCA) has concluded a two-day hearing in the Republic of Mauritius in an arbitration between an African company and an African State. The hearing marks the first occasion on which the PCA has held hearings in Mauritius under the 2009 PCA-Mauritius Host Country Agreement.

Singapore, South Africa and the United Arab Emirates.

International Arbitration Act administering 97 pending 2008 and with the promotion cases, 18 of which involve one of the pacific settlement of or several parties from Africa. international disputes in and with respect to the region. The PCA opened its Mauritius office in September 2010.

The PCA-Mauritius host country agreement further provides for a PCA office in Mauritius in order to assist with the discharge of its functions under the Mauritian The PCA is currently

The arbitration, for which the PCA acts as registry, is conducted pursuant to an international contract. The tribunal is composed of Mr. Karel Daele, Mr. Richard Omwela and Mr. Philippe Pinsolle. While the PCA's headquarters at the Peace Palace in The Hague, the Netherlands, are available for meetings and hearings in PCA proceedings, the PCA has also concluded host country agreements or cooperation agreements to facilitate the conduct of meetings and hearings in Argentina, Chile, Costa Rica, India, Hong Kong, Mauritius,

www.esqlaw.net

(Arbitrators Mr. Karel Daele, Mr. Richard Omwela, and Mr. Philippe Pinsolle, with PCA Legal Counsel and outgoing PCA Representative in Mauritius Ms. Fedelma Claire Smith) EsQ legal practice I 30

CENTRAL AFRICAN REPUBLIC PRESIDENT REQUESTS ICC INVESTIGATION

entral African Republic (CAR) President Catherine SambaPanza has requested that the International Criminal Court (ICC) [official website] investigate crimes committed within ICC jurisdiction since August 21, 2012. ICC prosecutor Fatou Bensouda [official profile] issued a statement [text] Thursday describing the context of the referral to the ICC and mentioning that all of the crimes that have been committed in the CAR have been documented by her office and "will not go unpunished." Bensouda said: Since 7 February 2014, the situation in the Central African Republic has been subject to a preliminary examination in order to ascertain whether the criteria of the Rome Statute [text] for opening an investigation have been met. This examination will continue and will be stepped up so that I can make a decision shortly. The referral of this situation by the Central 31 I EsQ legal practice

African authorities will enable the process to be sped up, where appropriate. Only five nations have ever submitted a referral to the ICC, all of which nations have been African. Violence has recently been ongoing in the Central African Republic. Bensouda's office opened a preliminary

investigation [JURIST report] into the situation in February. The UN Security Council approved a peacekeeping force in April, a month after a spokesperson for SecretaryGeneral Ban Ki-moon strongly condemned the violence [JURIST reports]. In March the UN Security Council established an International

Commission of Inquiry [JURIST report] on CAR, tasked with examining reports of human rights violations, compiling information, and helping identify perpetrators.

www.esqlaw.net

ICC CONFIRMS CHARGES AGAINST FORMER IVORY COAST PRESIDENT

he International Criminal Court (ICC) [official website] on Thursday confirmed charges [decision, PDF; press release] against former Ivo

ry Coast president Laurent Gbagbo [BBC profile; JURIST news archive], referring him for trial. Gbagbo faces four charges of crimes against humanity including murder, rape and persecution. After reviewing evidence, including statements from more than 100 witnesses and 22,000 pages of documents, the pretrial chamber concluded that there is sufficient evidence to support Gbagbo's criminal responsibility for violence following his 2010 election defeat. Gbagbo remains in detention [JURIST

report], and a trial has yet to be scheduled. The ICC issued a warrant for Gbagbo's arrest on charges of crimes against humanity [JURIST report] in November 2011. In November 2010 Gbagbo ran for reelection against former prime minister Alassane Ouattara [BBC profile]. The EU recognized that Ouattara defeated Gbagbo, but Gbagbo refused to concede victory. Gbagbo has been accused [JURIST report] of starting a civil war after losing the presidency, which resulted in 3,000 deaths and one million people displaced.

REPORT: WEST AFRICAN GOVERNMENTS SHOULD DECRIMINALIZE DRUG USE

est African governments should decriminaliz e drug use and treat it as a public health issue, according to a report [text, PDF] published Thursday by the West Africa Commission on Drugs [advocacy website]. The report also recommends that governments try to confront corruption so that traffickers cannot exploit corrupt officials. The report, commissioned by former UN

www.esqlaw.net

secretary-general Kofi Annan, states, "[w]e believe that the consumption and possession for personal use of drugs should not be criminalised. Experience shows that criminalisation of drug use worsens health and social problems, puts huge pressures on the criminal justice system and incites corruption." The commission also noted that, while West Africa is mainly used as a transit point for smuggling drugs, the West African poor are now using and suffering the effects of the

drugs that are being smuggled to Europe and the US. According to the report, although data is scarce, the most popular drug used in West Africa is marijuana, which the report states that is less harmful than other popular drugs such as cocaine and heroine. The commission also released a press release [text, PDF] stating, "[w]e caution that West Africa must not become a new front line in the failed 'war on drugs,' which has neither reduced drug consumption nor put

traffickers out of business." West Africa is mainly used as a transit point for trafficking drugs to Europe. In February 2012 UN Secretary-General Ban Ki-Moon expressed concern [JURIST report] "about reports stating that terrorist groups, such as al Qaeda in the Islamic Maghreb, have formed alliances with drug traffickers." West Africa has also faced criticism for human trafficking [JURIST backgrounder].

EsQ legal practice I 32

LIBYA TOP COURT DECLARES PM APPOINTMENT UNCONSTITUTIONAL

ibya's Supreme Constitutional Court on Monday refused to accept the appointment of Ahmed Maetig as the country's new prime minister, declaring the nomination unconstitutional. The rejection of the Islamist-led parliament's appointment was not accompanied by any further details or instructions [AP report], and the parliament has said it will comply with the court's decision, leaving interim Prime Minister Abdullah alThinni in office. Maetig's election win came after he earned 121 votes [Al Jazeera report], just surpassing the 120 needed under Libya's constitution, and has been

33 I EsQ legal practice

contested by some politicians and judicial experts. Although Thinni announced his resignation [Al Jazeera report] in April, he has refused to hand over power to Maetig or recognize his cabinet. Maetig has stated that he will respect the court's decision. The top UN envoy to Libya has praised the decision and also promised to respect it. Questions about the rule of law in Libya have arisen in the wake of the 2011 uprising [JURIST backgrounder] and subsequent civil war that deposed Muammar Gaddafi. In a briefing to the UN Security Council in May, International Criminal Court (ICC) [official website] prosecutor Fatou Bensouda [official profile] said that

Libya faces a deep political crisis[JURIST report] and serious security challenges, inhibiting its ability to rebuild itself as a modern democratic state. In March Saadi Gaddafi was extradited [JURIST report] from Niger back to Libya to stand trial for crimes allegedly committed during his father's rule. In February a spokesperson for the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] warned against [JURIST report] recent amendments to Libya's penal code. Law No. 5 of 2014 imposes prison sentences on any individual "undermining the February 17 revolution" and for "publicly insulting one of the legislative, executive or

judicial authorities." Saif alIslam Gaddafi and former intelligence chief Abdullah alSenussi have also faced charges of crimes against humanity before the ICC. In October the ICC ruled [decision, PDF] that the case against al-Senussi is inadmissible before the ICC [press release] and can only be heard by domestic courts in Libya but noted that the decision did not affect the issue with regards to the charges against Gaddafi. Back in 2011 Saadi Gaddafi was implicated [JURIST report] in a plot to flee to Mexico by the Secretary of the Interior.

www.esqlaw.net

DAMAC FILES FOR ICSID ARBITRATION AGAINST EGYPT

ubai-based Damac Properties has this week filed for international arbitration against Egypt after its chairman, Hussain Sajwani, was convicted by an Egyptian court for acquiring land below its market value in the Red Sea resort of Gamsha Bay during 2006.

And therein lies the rub: the sins – or otherwise – of previous governments will, in time, require some degree of unravelling once their authority no longer applies. Indeed, as Melanie Willems, an international arbitration partner in Chadbourne & Parke in London, remarks, “where there is regime change there is always going to be some questioning of the Sentenced to five years in commitments made by the prison and fined USD 40.5 previous regime.” million by the Cairo court, It is, she notes, “almost as sure Sajwani is thought to be as night follows day.” among the richest UAE That being said, for Willems nationals, with an estimated “there is very little at this stage which enables us to say wealth of USD 2.5 billion. whether or not there was a The deal, concerning a 30 problem with the way the square kilometre tract in the Guilt by association Gamsha Bay leisure Kenneth Fleuriet, a partner in previous regime conducted this particular commercial development, had been King & Spalding's transaction.” international arbitration brokered by Egypt's former tourism minister, Mohammad practice, acting as counsel for “Egypt has defended many ICSID claims over the years,” Damac's chairman, said that Zuhair Garranah, at whose says Craig Tevendale, an trial for corruption the ruling the prosecution and conviction of Sajwani was “a international arbitration was made against Sajwani. partner at Herbert Smith, “but Damac's arbitration claim was classic case of guilt by this will be the first which is association.” filed on 13 May at the solely attributable to the He acknowledged the Washington-based Egyptian court's finding that actions taken in the postInternational Centre for Mubarak era.” the amount paid for the Settlement of Investment Gamsha Bay property was too From a broader perspective, Disputes (ICSID). low: sold at USD 1 per square he believes that the case is An arm of the World Bank, worthy of further note metre – a third of its true established in 1966 by the “because it is very unusual to value, according to the Washington Convention, the see a matter of this nature ICSID is considered to be the country's tourism authority. brought by an Arab investor The transaction – bought foremost arbitral institution against an Arab state – through direct allocation for investor-state dispute rather than a public auction – although, of course, there are settlement. was nonetheless, Fleuriet very significant differences explained, “entirely proper, between Egypt and the UAE According to Damac, by in a great many respects.” convicting Sajwani in absentia and Damac was entitled to rely upon the price charged by 'Several legal violations' Egypt breached the Bilateral Investment Treaty (BIT) which the government at the time.” What is equally clear, Tevendale says, is that this protects investments by UAE It was, he added, “an 'arms will not be the last such claim. length' transaction that was nationals in the country. fully vetted by the appropriate He explains: “it is no secret In doing so Egypt was, the company said in a statement, Egyptian officials at the time that there are a number of of purchase.” other parties, and certainly not “responsible for a series of

www.esqlaw.net

blatant violations” of the 1997 BIT. “There has been a gross miscarriage of justice according to international principles,” it added. “Unreservedly rejecting the Egyptian court's judgment regarding the company's purchase of lands in the Red Sea resort area,” Damac, the statement went on, “has every confidence that an ICSID tribunal will ultimately determine that Egypt has violated a treaty and international law with respect to its treatment of Sajwani and the investments of Damac in Egypt.”

only from the Arab world, who are lining up to commence claims against Egypt for losses arising from the political turmoil itself, and for the actions of the new regime since.” Indeed, the Egyptian government may soon find itself facing a further international arbitration claim – once again concerning deals pushed through during the regime of ousted president Hosni Mubarak. It follows the State Council's Administrative Court recent annulment of the deal that saw Gamil Al-Kanbit, chairman of Saudi-based retailer Saudi Anwal, purchase 90% of the Egyptian department store chain Omar Effendi in 2006. Given the chain's iconic reputation – established in 1856, privatised a century later – in the country, the fact that it changed hands for USD 99.19 million was criticised by the court as representing an unduly low price. A state commission has further urged the tribunal to annul the contract due to “several legal violations.” “I will resort to the Egyptian judiciary and international arbitration to retrieve funds that belong to the investors in this company,” Al-Kanbit said in an interview with Saudi television on 11 May. “We had to borrow around EGP 450 million from Egyptian and international banks to spend on the development of the company,” he added, while refuting charges that the borrowed funds were appropriated for personal gain. EsQ legal practice I 34

ZAMBIA LURES FOREIGNERS BACK TO DEBT WITH RECORD T-BILL YIELDS

rally in Zambia's kwacha, the world's secondbest performing currency this month, and record high yields are attracting foreign investors back to the nation's Treasury bills.

Lusaka-based central bank said in an e-mailed statement. Zambia's kwacha gained 9.6 percent in June, the most in the world after Papa New Guinea's kina, paring losses for 2014 to 12 percent. Zambia agreed to start talks with the IMF on a program to contain its budget deficit, which may include a loan, the government said a week ago. The central bank has raised interest rates to a record to support the currency and tame inflation, while boosting overnight rates and ordering reserves be set aside for accounts held abroad to clamp down on speculators.

The Bank of Zambia sold 475 million kwacha ($76 million) of securities yesterday after getting 603 million kwacha in bids, the first time demand exceeded supply since Feb. 20, according to data compiled by Bloomberg. Yields on 364-day bills rose to 19.99 percent, the highest since Bloomberg began compiling data in 2005, with the sale luring mostly “The central bank have talked international investors, the down fears regarding the

35 I EsQ legal practice

currency of late and also their expectations of the fiscal deficit,” Nema RamkhelawanBhana, an Africa analyst at Rand Merchant Bank, said today by phone from Johannesburg. “That perhaps has shored up confidence.”

of a rebasing exercise that found the economy is about a quarter bigger than previously thought, Secretary to the Treasury Fredson Yamba said on June 6.

“All the economic fundamentals are still very positive, so it shows they still have confidence in the Positive Fundamentals economy,” David Chewe, Zambia's budget deficit investments director at swelled to 6.8 percent of gross National Pension Scheme domestic product last year Authority, said by phone from compared with a 4.3 percent Lusaka, referring to bids from forecast as corn and fuel foreign investors. subsidies and civil-servant Yields on the benchmark 364wage increases boosted day Treasury bills have spending. This year's deficit increased by 4.24 percentage will be 5.2 percent of GDP, points this year. down from a previous forecast of 6.6 percent, mainly because

www.esqlaw.net

GHANA EASES FOREIGN-CURRENCY RULES TO INCREASE GREENBACK SUPPLY

he Bank of Ghana reversed some restrictions on the use of the dollar and euro to boost foreign exchange supplies after companies said the rules made it more difficult to obtain cash.

Foreign companies will be allowed to pay local businesses using currencies other than the cedi, and exporters can retain 60 percent of revenue in foreign denominated accounts and convert 40 percent within 15 The central bank overturned a days, he said. rule that requires exporters to “We've seen that some convert proceeds from sales economic agents, because of abroad to the cedi in five days, misapplication of the rules, are Benjamin Amoah, head of having problems, and we're financial stability, told streamlining it,” he said. reporters in Accra, the capital.

“With the review it is expected that availability of foreign currency on the market will increase.”

importers and set limits on who can have accounts denominated in foreign currencies.

The bank issued orders in February requiring all companies use the cedi in local transactions to prevent the economy from becoming dependent on foreign currencies. The bank also limited the use of dollars and euros to exporters and

The cedi gained 2.7 percent to 3.035 per dollar as of 12:22 p.m. in Accra, paring losses this year to 22 percent, the biggest drop among 24 African currencies monitored by Bloomberg.

GUINEA'S PARLIAMENT APPROVES RIO TINTO $20 BILLION AGREEMENT

awmakers in Guinea approved an agreement signed by the government, Rio Tinto, Chinalco and the International Finance Corp. that plans $20 billion

www.esqlaw.net

investment in the Simandou iron-ore mine. “We congratulate the government for this excellent project,” National Assembly President Claude Kory Kondiano said. “It is a good

contract because of the quality of shareholders Rio Tinto, Chinalco and IFC, the World Bank's private-sector financing arm.”

resource. The deal foresees the construction of a 650kilometer (403-mile) railway and a deepwater port.

Simandou is the world's largest untapped iron-ore

EsQ legal practice I 36

$19.5M FRAUD: AT LAST, UK COURT CONVICTS KETAN SOMAIA

Dr. Gbenga Oduntan Senior Lecturer, Kent Law School, UK

he man at the centre of the Goldenberg scandal in Kenya during the 1990s has been found guilty of fraud at a trial at the Old Bailey in London. Ketan Somaia, who is now based in London, presided over the collapse of the Delphis bank and is best known for his involvement in the Goldenberg affair, a corruption scandal that helped wreck Kenya's economy and implicated former President Daniel arap Moi.

The scam centred around a company called Goldenberg International which claimed to be selling Kenyan gold and diamonds to companies abroad. To encourage exports the government at the time paid Goldenberg bonuses for foreign sales.

Mr Somaia, a businessman and former associate of a close friend of the late UK Prime Minister Margaret Thatcher, the former British Cabinet minister Cecil Parkinson, fled the UK more than a decade ago and has been pursued by creditors on three continents.

The 52-year-old who owned an office in Mayfair and a palatial home in north London managed to extract a total of £13.5 million from entrepreneur Murli Mirchandani between June 1999 and May 2000 after promising high returns.

But Kenya has no diamonds deposits and produces only a tiny amount of gold, and subsequent inquiries found its exports were fictitious.

But now he has been convicted at the Old Bailey of swindling $19.5 million (£11.5million).

Mr Mirchandani – who himself claims to be worth more than £70 million – pursued Somaia in the civil court before finally launching a private prosecution in the UK.

However large payments 'KING CON' associated with the scam were Ketan Somaia, who boasted of said to have passed through his close friendship with the Mr Somaia's bank Delphis. He was found guilty of a billionaire Hinduja brothers, multi-million pound fraud on Proceeds from the scam were was dubbed 'King Con', by the Friday and will be sentenced used for foreign currency Daily Mail newspaper, is said next month. speculation, which sent the to have wooed his victims In 2003, Somaia was ordered Kenyan shilling into freefall with luxury trips on private to give evidence to an inquiry and national inflation soaring. jets, Champagne parties, into the Goldenberg scandal, extravagant dinners and He was jailed for the alleged an export scam allegedly expenses paid trips to Dubai, scam in 2004, but his sanctioned at the highest Kenya and South Africa. conviction was quashed the levels of Moi's government. following year.

37 I EsQ legal practice

The trial, which according to the Guardian newspaper is thought to have been the largest ever British private prosecution brought by an individual, saw Mr Somaia convicted of nine counts of obtaining money by deception, totalling $19.5 million, from two separate victims, and acquitted of two

www.esqlaw.net

counts of obtaining money by money?” she told the trial. deception totalling $3.5 Somaia was said to have lured million. his victims by claiming that he Mr Ketan Somaia “was what is had a personal fortune of $100 sometimes called a confidence million and that his companies trickster, but on a grand were worth $500 million. scale,” said William Boyce QC He laid on all-expenses-paid for the prosecution. trips to Africa to entertain His lavish lifestyle was being business clients, and his paid for by people whose Dolphin group owned some of money was “taken and not the most prestigious hotels given back”, in a “systematic including Treetops Lodge, series of frauds”. where the young Queen Elizabeth spent her The Guardian reported that honeymoon. Mr Mirchandani, who made his fortune in food and In Somaia's defence, barrister chemicals, pursued Somaia for James Woods QC claimed Mr Mirchandani had given the more than a decade and was money knowing there was a the primary complainant in the successful Old Bailey trial. risk it might be lost. The jury found Somaia had also defrauded a London businessman, Dilip Shah, of £200,000.

NOT ALL WEALTHY Somaia's victims were not all wealthy.

“We suggest Murli Mirchandani, rather than the weak man portrayed, is more likely a hard-nosed business entrepreneur. It was he who looked at Mr Somaia in order to try and embark upon a business partnership.

“He was prepared to pay out big money to secure that His personal assistant, Arifa business relationship. He Parkar, said in evidence that gambled his money on Ketan she had eventually left Somaia. You win some and Somaia's employ, exhausted by fielding calls from unpaid you lose some but you take it creditors, after he failed to pay in your stride. This was no fraud.” her wages. “How could I survive without

www.esqlaw.net

GOVERNMENT CONTRACTS

Prosecution Service was not able to secure his extradition

Somaia was born in Kenya is alleged to have made most of his money from government contracts issued during the era of former President Moi.

In 2008, he was arrested in India while attending a wedding, and extradited to the UK.

Under one of these contracts, he was alleged to have been paid to import hundreds of second-hand black cabs from the UK to Nairobi, but a judge found that while 500 had been paid for, only 300 were delivered. He was sent to prison for the alleged scam in 2004, but his conviction was quashed the following year. When the Bank of Credit and Commerce International collapsed after an international corruption scandal in 1991, Somaia bought a number of its branches and changed the name to Delphis.

The Hertfordshire case was dropped, on the grounds the money had been repaid and Somaia was in ill health.

'SOME CLOSURE' Speaking after the verdict, Mirchandani said: “Securing a conviction against Mr Somaia will not undo the harm he has caused and the pain he has inflicted upon me and my family, but knowing that he has been brought to justice helps bring us some closure.”

Concluding the trial, Judge Richard Hone QC said: “This case has been exceptional for a number of reasons – the sums But a decade later Delphis also involved, the extraordinary collapsed, with its branches in lifestyles, the famous names, the world of international Nairobi, Mauritius and Tanzania closed or bailed out. businessmen and the outpouring of $23 million By 2002, Somaia had been simply relying on the concept arrested by Hertfordshire of 'My word is my bond'.” police for allegedly taking Somaia is due to be sentenced £500,000 from a local later this month after a entrepreneur. He fled to medical report. Kenya, and the Crown EsQ legal practice I 38

www.esqlaw.net

EsQ legal practice I 33

AFRICA ON THE GLOBAL ARBITRATION MAP: ARE WE TRULY PREPARED?

Babatunde Fagbohunlu SAN

With a growing awareness among lawyers, judges and business organisations, on the role of arbitration in commercial dispute resolution and legal risk management; court annexed ADR facilities are now being established across Africa, Arbitration Centers are gaining popularity and judges now undergo formal arbitration trainings. In this interview, Babatunde Fagbohunlu, SAN reviews Africa's position on the Arbitration map and the preparedness for international Arbitration.

re African centres truly prepared to compete for international arbitration work? A few jurisdictions in subSaharan Africa have certainly positioned themselves to compete favourably with London, Paris, Geneva, and 40 I EsQ legal practice

New York for certain types of international arbitration work. The question is â&#x20AC;&#x153;what types of international arbitration workâ&#x20AC;?? In my view there are two categories of international arbitration work that subSaharan African jurisdictions will be better placed to handle, given economies of scale and other factors. One category will be disputes arising from

regional trade, commerce and investments between African countries. The other one, perhaps to a lesser extent, will be disputes arising from regional trade, commerce and investments between Africa and countries outside Africa. I will identify those SubSaharan jurisdictions as Lagos, Mauritius, Kigali and Accra. There have been significant

positive reforms of laws and institutions in these jurisdictions. What trends can you identify in the growth of Arbitration in Africa? The first will be what I have already referred to, the significant positive reforms of laws and institutions in certain

www.esqlaw.net

EsQ legal practice I 41

sub-Saharan African jurisdictions. Lagos State recently enacted a new Arbitration Law which is modelled along the UNCITRAL Model Arbitration Law. It incorporates features of the recent improvements in the UNCITRAL model law itself, including those innovations in the Model law which take account of developments in Information and Communication Technology (ICT) and the impact that these have had on the ways in which modern business is conducted. There are also provisions which allow arbitrators to grant emergency interim relief. It also incorporates the very essential twin pillars of “judicial assistance” and “limited court intervention”. Ghana and Rwanda have also recently enacted modern arbitration legislation based on the UNICTRAL model law. The second factor will be the proliferation of African arbitration institutions. In Lagos, for example, we had been more familiar with the Nigeria branch of the UK's Chartered Institute of Arbitrators as well as the Regional Centre for International Commercial Arbitration Lagos, set up under the auspices of the Asian-African Legal Consultative Organisation (AALCO). Today there are a number of other arbitration institutions sharing the institutional arbitration space, such as the Lagos Court of Arbitration, and even some with specialist focus like the Maritime Arbitrators Association of Nigeria (MAAN). Elsewhere in Africa, you have the Kigali International Arbitration Centre (KIAC), the Ghana Arbitration Centre (GAC) and the LCIA-MIAC, which is the product of an agreement between the Government of Mauritius, the Mauritius International Arbitration Centre Limited and the London Court of International Arbitration (LCIA), just to name a few. A third trend is the growing awareness among stakeholders – lawyers, Judges and business organisations - about the important role that arbitration plays in commercial dispute resolution and legal risk management. You see it reflected in the growing practice of establishing court annexed ADR facilities which also offer arbitration

42 I EsQ legal practice

www.esqlaw.net

disputes. Today, parties typically choose English law and English jurisdictions (courts or arbitration) because English law is widely perceived to be so sophisticated that it provides solutions for complex business disputes. African Judges must continue to project a pro-arbitrations stance, and to support arbitration with efficient, speedy and just determination of arbitration related cases. Arbitration institutions must continue to sensitise the business community to the desirability of arbitrating Africa related disputes in African centres, not just because it potentially saves time and costs, but also because those centres are excellent centres for conducting arbitrations.

African lawyers have to develop skills and expertise in international arbitration as a process, and also in those commercial transactions that typically go to arbitration when disputes arise â&#x20AC;&#x201C; energy, infrastructure, finance, agency and distributorship, construction, shipping etc. Legal education institutions have to develop their capacity to impart knowledge and skills in these areas. services, such as the Lagos Multi-Door Courthouse (LMDC). Many more lawyers and Judges are undergoing formal arbitration training, and quite clearly the interest in arbitration is growing. How can we change the perceptions to having Africa as a seat of arbitration? Lawyers, Judges, legislators, arbitration institutions and legal education institutions

www.esqlaw.net

What about the persisting problem of costs? There is a perception that arbitration is more expensive than litigation, but this may be a generalisation, and is potentially a dubious one. For example, if it is possible to quantify what costs are saved from having an arbitral award that is truly final and binding in the sense that it cannot be re-opened to a merits review in the same manner that a High Court Judge's decision can be re-opened to merits review on appeal, will we be able to say that arbitration is more expensive than litigation? In any event there are various cost management measures that in-house counsel and external lawyers can employ to minimise the risk of excessive costs. Some of these problems can be addressed at the stage of drafting your arbitration agreement. One of the advantages of arbitration is that you can always tailor your arbitration process to fit the value and complexity of the particular dispute you are dealing with.

How will you assess the interplay between legal systems in international arbitration in Africa? As intra-African trade and in these areas. Legislators have the most critical role to play. African lawyers have to need to work hard at reform- commerce grows, there is a greater need for integration of develop skills and expertise in ing Africa's arbitration laws laws and institutions. The and to ensure that such laws international arbitration as a OHADA system is a good are constantly reviewed to process, and also in those commercial transactions that keep pace with developments example, but it is constrained in modern business. The by the historical fact that it typically go to arbitration when disputes arise â&#x20AC;&#x201C; energy, substantive laws which relate started as an essentially francophone system. There infrastructure, finance, agency to transactions that are has also been some debate and distributorship, construc- typically arbitrated must be sophisticated enough to about harmonising the tion, shipping etc. Legal arbitration laws of the SADC education institutions have to provide a good and comprehensive legal framework for States. I think all of this is develop their capacity to good, and efforts should be impart knowledge and skills resolving complex business EsQ legal practice I 43

44 I EsQ legal practice

www.esqlaw.net

At least in Nigeria, when a State entity operates in the commercial space, it is susceptible to arbitral, judicial and enforcement proceedings in the same way as any other commercial entity. The same will be true of most other African countries. made to integrate systems beyond sub-regional boundaries, and to achieve a truly pan-African system.

lawyers. And there is also the problem of corruption.

An increase in the number of cases involving state entities What developments can you coming from Africa has been observe in the Judicial observed lately, how well Approach towards enforcehave we balanced the notion ment and challenges against of state contract, state international Arbitral immunity from execution and Awards? the attitude of the African courts towards arbitration More than 30 African states involving state entities? have signed up to the New York Convention on the At least in Nigeria, when a Recognition and Enforcement State entity operates in the of Foreign Arbitral Awards, commercial space, it is and many have statutory susceptible to arbitral, judicial provisions which implement and enforcement proceedings the New York Convention. in the same way as any other Generally the legal framework commercial entity. The same for enforcement exists, and will be true of most other most courts tend to take a pro- African countries. As I said arbitration stance. The before, we have noticed that challenges lie with questions arbitration against state of judicial independence, entities presents peculiar capacity and efficiency. We features and difficulties of its have encountered problems own. This underscore the need when seeking to enforce to strengthen judicial indeawards against governmental pendence, but perhaps more agencies. Judicial processes importantly, it also undertend to be slow and easily scores the need for contract susceptible to unscrupulous negotiators to be careful when dilatory tactics by defence they choose their seat of

www.esqlaw.net

arbitration. What key factors should companies keep in mind in making their plan of action for resolving commercial disputes? If the underlying agreement has an arbitration clause, choice of counsel and choice of arbitrator is critical. There should be close interaction between in-house counsel and external counsel at the earliest possible stages of a dispute. The potential risks should be identified as early as possible, with a concrete plan of action articulated. Sometimes it helps to conduct a very neutral and independent evaluation of strengths, vulnerabilities and risks.

to assess strengths, weaknesses and risks. Three, involve senior officials who can actually make decisions, or who have ready access to the Board of Directors. Four, engage external counsel as early as possible to advise during negotiations Five, be careful to preserve privilege for communications made during negotiations. What you say (or write) during settlement may come back to bite you if settlement fails.

Can you advise General Counsel on five practical tips that can be used for PreArbitration Settlement? One, have a Dispute Resolution Policy Two, do an independent evaluation as early as possible EsQ legal practice I 45

A MULTIGENERATIONAL APPROACH TO ENGAGEMENT AND RETENSION Some people dwell on the differences among the three or four generations in the workplace and see them as obstacles to productivity and serenity. Others ignore the differences or deny that they are real, saying that we all are individuals. The observed truth lies somewhere in between.

e do need to regard each person as an individual, avoid stereotyping and remember that not all behavior is derived from generational factors. Having said that, there are observable patterns that a large percentage of people (in the U.S. and to a lesser but growing extent in other parts of the world) exhibit related to formative influences while they were growing up. Being aware of these patterns and attitudes is valuable when designing strategies and interacting as team members, mentors/mentees, coaches and supervisors. I focus on using knowledge of typical generational attributes, differences and similarities to boost motivation and retention. In this article, I specifically concentrate on the three generations—Baby Boomers, Generation X, and Generation Y (or Millennials)—that account for most of the workplace population today, and will for the next five years (see chart below). I discuss what each

46 I EsQ legal practice

generation is looking for in work and career that you need to tap into, assumptions to challenge, why and how the typical law firm culture actually plays against what it takes to retain both lawyers and staff, and some strategies to better meet engagement and retention objectives.

∙ Regard time as currency

Generation Y/Millennials ∙ Were raised in a transactional world and think in those terms ∙ Think and live in the moment ∙ Were educated to ask questions and expect the opportunity to express their views THINGS TO REMEMBER ABOUT EACH WHAT ALL GENERATIONS GENERATION ARE LOOKING FOR Many generational attributes All of these generations rate are reflected in workplace the following factors among behavior. Keep these in mind the highest in their work lives when developing engagement according to numerous and retention strategies: surveys: ∙ Meaningful work Baby Boomers ∙ The opportunity to learn and grow as a professional, ∙ Like in-person contact and establishing relationships first whether as an attorney, paralegal, in an administrative ∙ Are continual learners and function (marketing, recruitwant to work for intellectual ing, professional developstimulation ment, IT, etc.), or as part of an ∙ Are still competitive and in attorney team the game, and most have no ∙ To feel appreciated and concept of themselves as “old” listened to ∙ Financial compensation Generation X ∙ Nonfinancial rewards, such ∙ Are self-reliant, and want as the time and ability to work their own piece of the action some of the time in locations ∙ Are willing to learn as they outside the office go ∙ Relief from intense stress In addition, particularly for attorneys who aspire to stay at

By Phyllis Weiss Haserot a firm, there is usually a strong desire to interact with clients and to have a degree of control over what work is distributed to them. While these factors are motivators for all generations, they may play out differently. For example, the generations tend to like to learn differently (with the caveat that people have different listening and learning styles at any age). The older generations are used to attending—and giving—lectures and meeting in person. Generations X and Y want interaction, stimuli from video, contests and games, and immediate feedback. They like to learn on their own time from wherever they choose to be. Gen Yers want a lot of guidance because they want to do everything right the first time, and to work collaboratively. Gen Xers want their own piece of work to handle independently, and they want a path to running a practice or a client team. For some, their patience has been running out. Gen Y is an impatient generation and doesn't buy into the paying-your-duesfirst concept. The pace of change they have lived through negates the willingness to wait. In assessing their progress, Gen Yers are not interested in achieving the components of career satisfaction cited above in serial fashion. They want to have a check-in on their progress much more frequently than annually or even semi-annually. But the

www.esqlaw.net

In assigning work, give the Gen Xers their own piece of responsibility and trust them to find their own creative ways to complete it. Give recognition, including personal time. Boomers have experienced a longer time frame for leadership and promotion—and think the younger generations should also have to wait and achieve a series of milestones. Also significant, the generations have somewhat different perceptions of the concept of professionalism, as indicated by the results of Practice Development Counsel's fall 2011 survey. THE DOWNSIDES OF TYPICAL LAW FIRM CULTURE Many of the factors discussed here apply to other professions and industries as well, but typical law firm culture often plays against what it takes to retain lawyers and staff, or even to ensure they haven't mentally checked out even if they are still physically present. Firm management teams often delude themselves into thinking that paying more will keep the best talent for the long haul—or as long as they want them. Increasingly regarded as law firm cultural negatives: ∙ Short-term thinking and focus on profits per partner ∙ Undervaluing (i.e., not rewarding) attorney Ά mentoring and training

∙ Little long-term talent planning and management beyond an obsolete recruitment system ∙ An hourly billing and payyour-dues culture that hinders work/life flexibility and development of the whole person ∙ The caste system that fosters an us-versus-them mentality between lawyers and everyone else, and even among the tiers of lawyers IMPROVING ENGAGEMENT AND RETENTION People of all generations need to challenge their assumptions that everyone has the same motivations and definitions of success in the workplace. Employers often try to improve employee engagement with perks, but studies have shown that a lack of perks is not the initial cause of disengagement. More important is lack of intrinsic motivation, which is often caused by perceptions of favoritism, managers not being held to the same or higher standards as employees, partners or senior associates failing to give credit to associates or staff for their suggestions, and people consistently feeling their

concerns are not listened to. Here is a list of strategies to consider and implement: ∙ Learn the triggers that cause people to want to leave, and address them. ∙ Institute a more holistic view of the review process. ∙ Facilitate dialogues within work teams to surface and address generational issues, and achieve more fairness in assigning roles based on skill and merit. ∙ Enhance orientation to clarify expectations, give guidance very early on and involve all generations. ∙ Learn the hot buttons of how not to communicate between generations and the keys to building cross-generational rapport. ∙ Asses s and design mentoring, training, coaching and sponsorship with generational differences in mind. Referring back to what typically motivates engagement of the generations in their work, leaders and managers can take some specific steps: ∙ Train Boomers and Gen Xers who are supervising others to take the time to explain the context of assignments and how each person's piece of the work is important to clients and to the desired result. Emphasize how even seemingly mundane tasks are meaningful to achieving the overall goal.

%4 - # , $ - 3 +І# (%%$ 1 $ - " $ 2 І. - ІWORK TEAMS AMONG GENERATIONS ! ®©¿І! ∂∂¥ ¨ ∫

&¨ µ¨ ®ª∞∂µІ7

&¨ µ¨ ®ª∞∂ µІ8

ªª∞ªº ´ ¨ І ¨ Æ® ´ ∞µÆІæ∂ ≤ 6 ∂ ≤І¨ ªØ∞™І´ ¨ ≠∞µ¨ ∫ ІªØ¨ ¥

0 º ¨ ∫ ª∞∂µІ! ∂ ∂¥ ¨ ∫ Ρ І≥∞≠¨ І∫ ®™∞≠∞™¨ ∫

¥ ©∞ª∞∂ º∫ ΅І©º ªІ¥ ®¿І©¨ І∑¨ ™¨ ∞Ω¨ ´ І as aimless

3∞¥ ¨ ІŊІ™º ¨ µ™ ¿ = mon ey

%∂™º∫ І∂µІ∫ ª∞¥ º≥®ª∞µÆІ∫ ªº ≠≠

/ ∂∂ Іª¨ ®¥ І∑≥®¿¨ ∫ Έ І∏º ¨ ∫ ª∞∂µІ autho rity

& ∂º ∑-o rien ted but ind ividualistic

2 ≤¨ ∑ª∞™ ®≥ω™¿µ∞™®≥

. ∑ª∞¥ ∞ ∫ ª∞ ™І©º ªІ∫ ≤¨ ∑ª∞™®≥Έ І ¨ ®≥∞∫ª∞™

& ¨ ªІª∂ІªØ¨ І∑∂∞µªΈ І±º∫ ªІæØ®ªІ∞∫І needed

" ∂¥ ≠∂ ª®©≥¨

$ ø∑¨ ™ ª¨ ´

6 Ø®ªІ∞∫ ІΩ®≥º ¨ ´ Ό 5 ∞∫ ∞©≥¨ І∫ ¿¥ ©∂≥∫ І∂≠І∫ º ™™ ¨∫∫

3 ¨ ®¥ æ∂ ≤ 3 ¨ ®¥ æ∂ ≤І®∫ ∫ º ¥ ¨ ´

∙ Keep Boomers learning through mutual (two-way) mentoring without being condescending to either older or younger generations, and give recognition to both. Integrate this into the culture. Both Boomers and Gen Yers, by sheer numbers, are competitive—and they are collaborative too, which may seem like a contradiction. Get them to see the common purpose and to focus on external, rather than internal, competition. ∙ In assigning work, give the Gen Xers their own piece of responsibility and trust them to find their own creative ways to complete it. Give recognition, including personal time. ∙ Accept that Gen Yers and new entrants to the firm are likely to need more guidance than Gen Xers and Boomers did. With attention up front, they will learn to meet expectations with speed, enthusiasm and technological savvy. ∙ All generations want work/life flexibility and integration, and it's about more than parental need. A flexible, agile culture has proven to boost engagement and retention in many industries. Whatever the generation, trust in people's ability to get the job done when they have clear expectations and feel a sense of fair treatment. Trust and respect will engender the same toward the firm, and using a combination of the strategies above will boost productivity and retention of desired talent. Phyllis Weiss Haserot is the president of Practice Development Counsel, a business development and organizational effectiveness consulting and coaching firm working with law firms for more than 20 years. She focuses on the profitability of improving intergenerational relations for better productivity, retention and business development results.

! ®∫ ∞™І ∑∑ ∂®™Ø . ∑ª∞¥ ∞∫ ª∞™

" ∂¥ ¥ º µ∞™®ª∞∂ µ 3 ¨ µ´ Іª∂І∂Ω¨ ¨ ø∑≥®∞µ

# ∞Ω¨ ∫ ∞ª¿ ™™ ¨ ∑ª¨ ´

www.esqlaw.net

EsQ legal practice I 47

DOMESTIC ARBITRATION IN NIGERIA: CAN FOREIGN COUNSEL STILL RUN THE RACE? Oghogho Akpata and Adewale Atake Partners, Templars

he Starting line Party autonomy is a fundamental feature of arbitration globally. The concept of party autonomy is rooted in the understanding that parties to an arbitration process should be able to determine the conduct of their arbitration proceedings. Arbitration and awards thereof are essentially private arrangements by the parties, which the State simply puts into effect through subsequent enforcement. autonomy is a fundamental feature of arbitration globally. The concept of party autonomy is rooted in the understanding that parties to an arbitration process should be able to determine the conduct of their arbitration proceedings. Arbitration and awards thereof are essentially private arrangements by the parties, which the State simply puts into effect through subsequent enforcement. One key manifestation of party autonomy is the choice of 48 I EsQ legal practice

representation by the parties to the arbitral proceedings. Article 4 of the United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Rules‟) made pursuant to the UNCITRAL Model Law on International Arbitration (Model Law) underscores this position by providing that "the parties [to arbitration] may be represented or assisted by persons of their choice...". It appears though, that the Nigerian domestic Arbitration Rules (the Rules‟) made pursuant to the Arbitration and Conciliation Act, Cap A18, Laws of the Federation of Nigeria, 2004 ('the ACA'), has introduced a limitation to this freedom of choice of representation. Article 4 of the Rules, provides that "the parties [to arbitration] may be represented or assisted by legal practitioners of their choice..." (Emphasis supplied). It is useful to highlight that both the ACA and the Rules are adaptations of the UNCITRAL

Model Law and Rules and Article 4 of the Rules is very similar to Article 4 of the UNCITRAL Rules save for the change from the word "persons" to "legal practitioner" A tribunal in a pending domestic arbitration recently considered Article 4 of the Rules regarding representation of the parties and held that the words legal practitioner‟in Article 4 restricts representation of parties to persons who are qualified to practice law in Nigeria. On that basis, the tribunal declared the foreign counsel who appeared for the claimants not qualified to represent the claimants in the arbitration proceedings. Consequently a person who is not qualified as a legal practitioner‟ in Nigeria may not represent parties in domestic arbitration proceedings in Nigeria. The tribunal‟s ruling raises a few considerations for parties to an arbitration and the practice of arbitration in

Nigeria generally: Is the tribunal‟s interpretation of Article 4 correct? If so, is the qualification of representation in domestic arbitration by Article 4 desirable? Are there any exceptions to the requirement for Nigerian legal practitioners in domestic arbitration? These questions are addressed below. The Hurdle The critical issue is the substitution of the word persons‟as contained in the UNCITRAL Rules with the words legal practitioners‟in Article 4 of the Rules. The term legal practitioner‟has a strict statutory definition under Nigerian Law. section 18 of the Interpretation Act, Cap I23, Laws of the Federation of Nigeria, 2004 provides that the term legal practitioner‟, when used in any enactment, has the meaning assigned to it by the Legal Practitioners Act Cap L11, Laws of the Federation of Nigeria, 2004 (LPA‟ ). Section

www.esqlaw.net

24 of the LPA defines a legal practitioner as a person entitled "to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceedings". By virtue of section 2(1)(a) and (b) of the LPA, persons who may be entitled to practice as a barrister and solicitor include persons whose names are on the roll and persons who have obtained a warrant of the Chief Justice of Nigeria upon an application made in that respect. See Atake v. Afejuku (1994) 9 NWLR (Pt. 368) 379 Thus, by the combined effect of the above provisions legal practitioner‟as specified under Article 4 of the Rules is restricted to only persons who are qualified to practice law in Nigeria. A‟ fortiori, a person who has not been enrolled to practice law in Nigeria is not permitted to represent any party in domestic arbitration proceedings unless the Chief Justice of Nigeria, upon application by the party concerned, grants a warrant to such person to represent the party in that particular proceedings. It is in deference to this legal position that the earlier referred arbitral tribunal in the arbitration held that foreign counsel cannot represent the parties in a domestic arbitration governed by the Rules. This position, which applied to litigation by virtue of the Supreme Court decision in Awolowo v Sarki (1966) A.N.L.R. 171, appears to have fuelled more worries that arbitration may in fact be shifting towards undue technicality.

growth and may be viewed as deserving of commendation. Nevertheless, some of the perceived adverse repercussions of its strict interpretation deserve consideration too. First, the restriction of representation to only Nigerian lawyers could constitute a subliminal disincentive to foreign investments in Nigeria. In an increasingly globalized world there is emphasis on the isolation of arbitration proceedings as much as possible from unnecessary inhibitions of local laws, in order to promote foreign investments. To insist then that legal representation in domestic arbitrations must be handled exclusively by local counsel appears to be a subversion of one of arbitration‟s key features. It could ultimately discourage potential foreign direct investors in Nigeria who may be more inclined to retain foreign counsel with whom they are more conversant to represent them in arbitral proceedings, particularly where the dispute is multijurisdictional and involves exceptionally substantial claims. Secondly, Article 4 of the Rules could trigger retaliatory measures by other States, who may likewise alter their rules by restricting representation in their domestic arbitration to local counsel and thus deny Nigerian practitioners the opportunity to acquire crossjurisdictional experience that is essential in today‟s global market place. For parties who are The Stakes represented by persons not In the light of the restrictive enrolled to practice law in definition of legal practitioner‟, Nigeria, Article 4 of the Rules It may be argued that in as and its recent application by much as Article 4 of the Rules an arbitral tribunal presents a require participation of local challenge. The role of foreign counsel in domestic counsel would be limited to arbitration, the provision advisory or consultancy lends support to local content‟ services in domestic

www.esqlaw.net

arbitrations with only Nigerian lawyers able to represent parties formally. Nonetheless, we are of the view that parties may avoid this restriction by removing the proceedings from the purview of domestic arbitration. The Bypass It would appear that the ACA creates an escape route for parties who desire to avoid the provision of Article 4 of the Rules. Parties are at liberty to expressly designate their arbitration international‟, and on the strength of that designation, apply the UNCITRAL Rules (or any other international rule) in their arbitration proceedings. This position holds sway notwithstanding that the parties to the agreement are local entities. The assertion above is deducible from the combined provisions of sections 15, 53 and 56 of the ACA. For ease of reference, the relevant provisions in these sections are reproduced: Section 15(1): The arbitral proceedings shall be in accordance with the procedure contained in the Arbitration Rules set out in the First Schedule to this Act.‟ Section 56: (2) An arbitration is international if – (d) the parties, despite the nature of the contract, expressly agree that any dispute arising from the commercial transaction shall be treated as an international arbitration.‟ (5) Where a provision of this Act – (a) refers to the fact that parties have agreed or that they may agree; or (b) in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in the agreement.

Section 53: Notwithstanding the provisions of this Act, the parties to an international commercial agreement may agree in writing that the dispute in relation to the agreement shall be referred to arbitration in accordance with the Arbitration Rules set out in the First Schedule to this Act, or the UNCITRAL Arbitration Rules or any other international arbitration rules acceptable to the parties.‟ In interpreting the provisions above, practitioners agree that the provision of section 15 of the ACA relates solely to domestic arbitration. The mandatory language in which the section is rendered suggests that the applicability of the provisions of the Rules may not be derogated from in domestic arbitrations. Thus, it does appear settled that the restriction on representation by foreign counsel contained in Article 4 of the Rules must be observed in domestic arbitrations. In Section 56(2)(d) however, the ACA defines international arbitration‟to include any arbitration that the parties have expressly agreed in their agreement to treat as such notwithstanding the nature of the contract. The poignancy of this definition lies in the words: despite the nature of the contract...‟. These words, demonstrate beyond doubt that the parties‟ discretion to expressly designate their arbitration as international‟is neither fettered nor circumscribed by the nature of their contract. A‟ fortiori, such considerations as the citizenship of the parties, the place of performance of the contract and related matters have no bearing on the recognition of parties‟ arbitration as being international‟once the parties have declared it to be so. The practical application of section 56(2)(d) would EsQ legal practice I 49

therefore mean that parties could validly agree to treat arbitrations arising out of their commercial transactions as "international" notwithstanding that every aspect of their contract is to be performed in Nigeria, and by Nigerians. If so, the crucial question would then be: what assistance would this approach afford in avoiding the provision of Article 4 of the Rules? Or better still, what is the correlation between an international arbitration and Article 4 of the Rules? Section 53 appears to proffer an answer to the above questions. The provision thereof gives parties to international commercial transactions the freedom to determine the arbitration rules that would regulate the conduct of their proceedings. The parties may agree to arbitrate in accordance with the Arbitration Rules..., or the UNCITRAL Arbitration Rules or any other international arbitration rules acceptable to the parties‟. This position may be contrasted with the analogous position in domestic arbitration, where section 15 appears to have made application of the Rules mandatory in such proceedings. It follows therefore that where parties have expressly designated arbitrations arising from their contract as 'international', the internationalization‟of such arbitrations would confer on the parties a concomitant right to designate the applicable arbitration rules. Accordingly, parties who comply with the provision of section 56(2)(d), and who are adverse to the restriction on foreign counsel contained in Article 4 of the Rules, could nominate the UNICTRAL Rules or any other international rules to govern their proceedings. Clearly, there is no restriction on foreign counsel where the

50 I EsQ legal practice

arbitration is international. Further support for the foregoing position may be located in Section 56(5), which in effect provides that where the ACA refers to an agreement between parties, such agreement includes any arbitration rules referred to in the agreement. Therefore, if parties agree to treat their dispute as international arbitration as permitted by section 56(2)(d), any arbitration rules designated by the parties will be enforceable as part of that agreement. Going forward, the practical point to note from the provisions above may be summed up thus: where contracting parties are uncomfortable with the restriction on foreign counsel representation contained in Article 4 of the Rules, they may be able to eliminate same by including a declaration in their contract that arbitrations arising thereof are international, and are to be governed by any international arbitration rules of their choice. For parties whose contracts are already subsisting, similar results may also be achieved by execution of supplementary arbitration clauses tailored towards the same effect. Another possible escape route for parties who desire to avoid the provision of Article 4 of the Rules could arise in situations where a contractual claim also gives rise to a Bilateral Investment Treaty ("BIT") claim. This is especially where the requirement for parties to exhaust all local remedies is not a prerequisite to triggering a BIT claim. Accordingly, where a parties‟ claim in arbitration also falls within the framework of an existing BIT, rather than commence domestic arbitration under the Rules, such a party has the option to side step the Rules by electing

to pursue the BIT arbitration under the relevant BIT and is thus free from the "shackles" of Article 4 of the Rules. Ironically, the Rules itself will be the first victim if the foregoing approach becomes widespread as the repeated boycott of its application could ultimately undermine its usefulness. Taking this into consideration, it is suggested that the provision of Article 4 of the Rules should as much as possible be amenable to liberal interpretation. One way of doing this would be to construe the may in "the parties may be represented or assisted by legal practitioners of their choice..." as being permissive enough to allow parties to validly exclude the applicability of the prohibition on foreign counsel by express or implied consent, or in their arbitration agreement. This could potentially deflect the negative impact of Article 4 of the Rules on party autonomy whilst simultaneously encouraging parties to adopt the Rules in the conduct of their arbitration proceedings. Finally, it may be pertinent to note that a challenge on an award resulting from domestic arbitration under the ACA, on the ground that the successful party was represented by foreign counsel, may be futile if no timely objection was raised to such representation during the arbitration proceedings. This view is informed by Section 33 of the ACA, which provides that: "A party who knows – a. that any provision of this Act from which the parties may not derogate; or b. that any requirement under the arbitration agreement, has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance within the time limit provided therefore shall be deemed to have waived his right to object to the non-

compliance." Accordingly, where foreign counsel appears in an arbitration to which the ACA and the Rules are applicable, and the adverse party fails to either raise an objection or to do so within a reasonable time, such adverse party will be deemed to have waived his right to object to the noncompliance with the law. The Finish Line Protectionist laws are like the double edged sword which could harm the swordsman as much as the swordsman may use it to harm others. The restriction in Article 4 of the Rules could have a net negative impact on domestic arbitrations should parties consistently designate their otherwise domestic arbitrations international‟. It could also result in retaliatory legislation in other jurisdictions which would limit Nigerian practitioners. It remains to be seen whether other tribunals will take the same view going forward but it has become essential for parties to commercial agreements with arbitration clauses to make adequate preparations for the hurdle of Article 4 of the Rules before commencing their domestic arbitration race. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

www.esqlaw.net

NIGERIA: SOVEREIGN IMMUNITY AND THE TRIALS OF AUGUSTO PINOCHET 1] INTRODUCTION International law is the most recent addition in the line of established legal logics and jurisprudence. The reason for this is not farfetched. Nations have always determined their laws individually based on the peculiar situations which may arise from their cultures, experiences and interventions, which inevitably differ from country to country. Even within a Nation, there is always a constant clamour for laws that can accommodate all components of that Nation; an example is the constant clamour for constitutional amendment or national conference on governance in Nigeria. It is certainly now the time for us to begin to draw greater attention to the realm of International law as the world becomes increasingly globalised with the amazing developments in the field of information technology. Chief Bolaji Ayorinde SAN Principal Partner, B. Ayorinde & Co

51 I EsQ legal practice

www.esqlaw.net

International law has since been given several definitions, principal amongst which is that, it is "a body of laws that govern the legal relations between or among states or nations". It can also be described as "a body of legal rules governing the interaction between sovereign states (Public international law)" or as the rights and duties of the citizen of sovereign States towards the citizens of other States (Private International Law). Furthermore Blacks Law Dictionary, 6th edition at page 816 describes International Law as "those laws governing the legal relationship between nations, rules and principles of general application dealing with the conduct of nations

www.esqlaw.net

and of international organizations and their relations inter se, as well as with some of their relations with persons, natural or juridical." However the simplest description of international law is that it contains a set of rules and regulations that define the way in which nations generally agree to behave towards one another. The notion of Sovereignty is a significant aspect of international law. Every Sovereign state or nation is bound to acknowledge and respect the independence and individuality of other Sovereign states or nations. The courts of one country are not expected to sit in judgment on the acts of the government of another state. See the case of Underhill v. Hernadez (1897) U.S Supreme Court. Again in the case of Compainia Naviera Vascongada v SS Christiana (1938) 1 All ER 719 @ 720, Lord Atkin in his speech held that "the Court of a country will not implead a foreign sovereign". Immunity as a concept on its own can be understood as a legally recognized shield which prevents the prosecution of the holder of a certain position from criminal or civil prosecution. In municipal law, immunity can be provided for a certain class of persons such as the President, the Vice President, Governors and State Deputy governors. For example Section 308 of the Constitution of the Federal Republic of Nigeria 1999 provides as follows; 308. (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section a. no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office; b. a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and c. no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued: Provided that in ascertaining whether any period of

limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office. (2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party. (3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to "period of office" is a reference to the period during which the person holding such office is required to perform the functions of the office. In the case of Fawehinmi v. Inspector General of Police (2002) 7 NWLR ( pt 767) at 608, the Supreme Court held that the above cited Section 308 of the 1999 Constitution of the Federal Republic of Nigeria protects the President, Vice President, Governor and Deputy Governors from civil and criminal prosecution for acts done by these persons during their tenure of office. However in this landmark judgment, the Supreme Court held that even though protected by Section 308, the affected public officers may be investigated and evidence gathered against them can be used to prosecute after their tenure of office. See also the case of Rotimi v MacGregor (1974) 11 SC 133 and Tinubu v. IMB Securities (2001) 11 WRN 27 CA.

with this and the state can now be held very accountable for tortuous acts, breach of contract and general violation of fundamental rights. The provision of Section 6 (6) of the 1979 Constitution as retained in the 1999 Constitution as amended is of great significance. In the case of Ransome â&#x20AC;&#x201C; Kuti & Ors v Attorney General Federation (1985) N.S.C.C Vol 16 part II @ 879, the Supreme Court as per Kayode Eso J. S. C held as follows; " I have checked all our Constitutions prior to 1979 and regrettably I am not able to find any provision which one could apply, even remotely but rightly, in annulment of this doctrine. The court is to administer law as it is, and not as it ought to be. This immunity attaching to the State in this country is sad. For the learned trial judge who took evidence described the scene that day as "hell let loose" and this had set out in his analysis of the evidence. He said:-"It is beyond dispute of course, that many soldiers, a witness gave the figure of 1,000, surrounded the entire buildings, hurling stones, and broken bottles. Many of them got inside the building, set fire to it as well as the generator in the compound" This is bad. It should not be right that once the actual perpetrators could not be determined, the State, whose soldiers these perpetuators are could not be made liable. But then as I said the immunity of the State persisted at the time of the incident. As it is the 1963 Constitution that governs this case I have 2] SOVEREINGN made special study of the IMMUNITY provision that I believe may be Sovereign immunity as a applied to exclude this judicial doctrine is one which immunity. S.22 is the closest precludes the bringing of but then it only deals with judicial proceedings against a determination of rights and government without the talks about fair hearing. No consent of the government. Its provision has helped. history is founded on the Happily for the country, but ancient principle that "the this does not affect the instant King can do no wrong", or case, section 6 of the 1979 what I call the 'Kabiyiesi Constitution which vests the Principle'. The word Kabiyiesi judicial powers of the country (or kabi-o-osi) literally in the court has to my mind translates as 'querying or removed this anachronism." holding you accountable will See also Abacha v Fawehinmi not arise'. It is used to address (2000) 6 NWLR pt 660. the Oba, the all powerful monarch who is not 3] THE TRENDTEX CASE accountable to anyone. The law on sovereign Most civilized and democratic immunity like the entire Nations including Nigeria concept of international law is have essentially done away still at a formative stage and EsQ legal practice I 52

the law has largely developed with the changes in the times that we live. This fact is evidenced by the decision of the English Court in the case of Trendtex Trading Corporation V. Central Bank of Nigeria (1977) 1 ALL ER 881. This case arose at a time when Nigerian ports and the importation regime had been terribly mismanaged. There was mass importation of cement but very little facilities to discharge cargo. The paper work had been confusing and overwhelming for the ports authorities. Vessels from all over the world dotted over our territorial waters but could not berth at the Lagos Port. It was a scene reminiscent of the Spanish Armada, but only this time, it was a Cement Armada on the Nigerian coastal waters. The Central Bank of Nigeria (CBN) is created by Statute; it performs governmental functions of regulating the financial system. It safeguards the international value of the Nigerian currency and it is the banker and adviser to the Nigerian Government and States within the federation. In July 1975, the CBN through a correspondent London bank issued a letter of credit for US $14,280,000.00 in favour of Trendtex, a Swiss company for the price of cement to be sold by Trendtex to an English company which had contracted with the Nigerian Ministry of Defence to supply the Ministry with cement, for the building of Army barracks in Nigeria. The Central Bank of Nigeria by a letter, assured Trendtex that there was no need for confirmation by another banker of the letter of credit as the money will be available. Trendtex bought in the cement, supplied it to the English company, and shipped some of it to Nigeria. Because of congestion of shipping at the Nigerian ports, Trendtex incurred demurrage. Furthermore, the Nigerian government, because of the congestion, introduced import controls on cement and instructed the CBN not to pay for consignments of cement which were not authorized under the controls. Trendtex claimed payment of the demurrage and price of the cement shipped under the letter of credit. The CBN refused to honour the letter of credit. Trendtex promptly issued a writ in the English 53 I EsQ legal practice

High Court against the CBN claiming the demurrage, the price of the cement shipped and damages for non â&#x20AC;&#x201C; acceptance of the balance of the cement. The CBN applied to set aside the writ on the ground that it was a department of the state of Nigeria and was therefore immune from suit under the doctrine of sovereign immunity, as its refusal to pay was an act of a Sovereign government not subject to the English courts. The English Court of Appeal Civil Division did not allow the CBN position on sovereign immunity to succeed. It was held that CBN was not entitled to sovereign immunity because having regard to its constitution, its functions and the control over it, it had not established that it was a department of the state of Nigeria even though it was established by the state under statute as a separate legal entity. Trendtex thus marked the beginning and confirmation that international law changes with times. Trendtex dealt with the relationship between United Kingdom national law and international law. It was

the first time that the English Court had applied restrictions to its sovereign immunity law. Following this decision, the Parliament in the UK enacted the State Immunity Act and Part 1 section 5 thereof excludes from immunity a range of commercial and financial crimes as well as personal injuries and damages to property in the United Kingdom. In Trendtex, Lord Denning's decision was greatly influenced by the changing nature of the activities of government and state institutions. This change was recognized and well put by my learned friend and brother silk Olasupo Shasore SAN, FCI Arb at pages 29 to 31 of his very illuminating book titled "Jurisdiction and Sovereign Immunity in Nigerian Commercial Law" where he wrote that 'this common law doctrine of absolute sovereign immunity has changed (at least in English common law) over the years to the doctrine of restrictive immunity as a result of transformation in the functions of a sovereign state. Prof. H. Lauterpacht in an article "The problem of

Jurisdictional Immunities of Foreign States" wrote, "The reasons for the tendency which has been on the increase since the end of the First World War to do away with the doctrine of jurisdictional immunity of foreign states have been repeatedly stated... The main and articulate source of the opposition to it, has been the realization that the principle of immunity as originally applied by courts was intended to cover the political activities of the State as a Sovereign entity in the strict sense of the word and that it has become absolute and productive of injustice and inconveniences at a time the operations of the state are increasingly extending into the commercial, industrial and similar spheres. However the growing opposition to the jurisdictional immunities of foreign states has drawn its strength from factors more significant than modern developments in the economic sphere. These factors arise to a large extent from the challenge to the prerogatives of the Sovereign State which denies the individual the legal remedies for the vindication of his rights as against the state in the matter both of contract and of tort, and which asserts a privileged position for the state in the procedural sphere... Restrictive immunity means no more than the immunity granted to a foreign sovereign is restricted to acts of a governmental or political nature, acts "jure imperii" and not commercial or personal acts. The Privy Council in the case of PHILIPPINE ADMIRAL (OWNERS) v. WALLEM SHIPPING (HONG KONG) LTD abandoned the doctrine of absolute Sovereign immunity in actions in rem when Lord Cross said, "...the trend of opinion in the world outside the commonwealth since the last war has been increasingly against the application of the doctrine of sovereign immunity to ordinary trading transactions... their Lordships themselves think that it is wrong that it should be so applied... Thinking as they do that the restrictive theory is more consonant with justice, they do not think that they should be deferred from applying it..." Perhaps the most recent and

www.esqlaw.net

notorious of cases regarding the subject of sovereign immunity is to be found in the trials of Augusto Pinochet. I have relied extensively on Brian P. Blocks and John Hostettler's book titled "Famous Cases, Nine Trials that changed the law" published in 2002 by Waterside Press for my information and material. 4] PINOCHET; THE BACKGROUND Augusto Jose Ramon Pinochet Ugarte (hereinafter referred to as "Pinochet") was a General in the Chilean army. He was born on the 25th of November, 1915 and died on 10th December 2006 at the age of 91 years. On 11 September 1973 there was a military coup and Pinochet assumed power and on the same day was appointed president of the ruling junta. The coup d'ĂŠtat saw to the end of President Salvador Allende's democratically elected socialist government in Chile. Eleven days later the new regime was recognized by the British government and a year later, on 11 December 1974, General Pinochet assumed the title "President of the Republic". In December 1985, General Ibrahim Badamosi Babangida overthrew the two year old regime of General Muhammadu Buhari and for the first time Nigeria, Babangida did not use the title Head of State but styled and called himself "President". In 1980 there was a national referendum in Chile which approved a new constitution providing for executive power to be exercised by the President of the Republic as head of state. The Pinochet administration implemented harsh and stringent measures against persons considered to be political opponents. Our own country Nigeria has also witnessed several harsh military interventions with the General Sanni Abacha regime being the most draconian. Allegations of mass killings of about 3,000 people, detention and torture of about 100,000 people which included women and children were rife during Pinochet's regime. The same regime introduced various economic reforms which have been described as the miracle of Chile. The reforms made Chile till today the best performing economy in Latin- America. Pinochet held that office until 1990

www.esqlaw.net

when, after a democratic general election, handed over power to the new President on 11 March 1990. He was then appointed Senator for life, an appointment which afforded him immunity for life in his native Chile. When Pinochet came to Britain on a special diplomatic mission in 1994, and again in 1995 and 1997, he was afforded full diplomatic courtesies. In September 1998, at the age of 82 he returned to Britain and with the full knowledge of the British Foreign Office he underwent an operation at a London Clinic. Just before midnight on 16 October, 1998 and while still at the London Clinic, he was arrested pursuant to a provisional warrant (the first) issued under Section 8(1)(b) of the Extradition Act 1989 by a Metropolitan Stipendiary Magistrate, Mr. Nicholas Evans. On October 17, 1998 the Chilean government protested and claimed immunity on behalf of Pinochet as a visiting diplomat and former Head of State. It was discovered that the provisional warrant, which was based on a claim of the Spanish government that Spanish citizens were murdered in Chile was deemed to be bad since murder was not an extradition crime in Britain at that time. This flaw became apparent to the British Crown Prosecution Service who were acting on behalf of the Spanish government, and a second international warrant of arrest, which relied on events between 1973 and 1979 in Chile, was issued by a Spanish court alleging crimes of terrorism, the infliction of severe pain and of genocide, which are extraditable offences. This resulted in a second provisional warrant of arrest issued by another Metropolitan Stipendiary Magistrate, Mr. Ronald Bartle, and on this warrant, Pinochet was re-arrested on October 23, 1998. The second provisional warrant was good because whereas the murder of a British citizen abroad is not an offence under English law, torture is, irrespective of where and on whom the torture was committed; see Section 134 (1) Criminal Justice Act 1988 of the United Kingdom, which makes torture a universal crime. The warrant was also premised

upon acts of hostage taking within Section 1 of the Taking of Hostages Act 1982. 5] THE QUEEN'S BENCH DIVISION OF THE HIGH COURT The Divisional Court heard Pinochet's challenge to the warrant on the 26th and 27th of October 1998. Pinochet claimed that he was entitled to immunity under customary international law and the provisions of Section 20 (1) Part II State Immunity Act 1978, read with Section 2 of Articles 29, 31 and 39 of Schedule I to the Diplomatic Privileges' Act 194. The court was presided over by the Lord Chief Justice of England, Lord Justice Bingham and both Mr Justice Collins and Justice Richards sat with him. They took extensive arguments from Pinochets lawyers and lawyers to the Crown Prosecution Service. The Court unanimously held that Pinochet was entitled as a former Sovereign to immunity from the criminal and civil process of the English Courts and the warrants of arrests were quashed. The Crown appealed to the House of Lords (now known as the Supreme Court). 6] THE FIRST APPEAL The first appeal was heard between 4th November, 1998 and 25th November, 1998 when judgment was delivered by the House of Lords, a period of just 21 days. Five law Lords sat on the appeal. They were Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hoffman. There were three grounds of appeal; 1. That state immunity under Section 1 State Immunity Act 1978 which provides immunity to a foreign state from the jurisdiction of United Kingdom courts also extends it to a head of state in his public capacity; 2. That personal immunity for a head of state under Section 20 of the 1978 Act which provides immunity to a head of state or former head of state in the exercise of his functions as head of state; 3. That the common law "act of state" doctrine protects the appellant. In view of the importance of the case, the court invited

arguments from persons who were not parties to the Court as Amicus Curiae. This practice is also not uncommon in Nigeria. Amicus Curiae is a Latin term which means 'friend of the court'. It is also the name given to a brief filed with the Court with leave of the court by someone who is not a party to a case. It may be that the person is of the opinion that the decision may affect its interest, or that Counsel who in the opinion of the Court may provide valuable legal argument on certain issues arising from a case be invited to participate in the proceedings. The Organisations invited by the House of Lords included; The Medical Foundation for the Care of Victims of Torture, The Redress Trust, Human Rights Watch, The Association of the relations of the Disappeared Detainees and Amnesty International. The House of Lords allowed the appeal and overturned the decision of the Court of appeal by a majority of 3 to 2, Lord Slynn of Hadley and Lord Lloyd of Berwick dissenting. The Court held that immunity for a Head of State or former Head of State applied only to acts performed whilst he was functioning as Head of State. Torture and the taking of hostages could not be regarded as functions of a Head of State. It was further held that it was a principle of international law that acts of torture and hostage taking were unacceptable even were done by a Head of State or former Head of State and that since the offence with which Pinochet was charged were offences under the U.K, statute law, Pinochet had no immunity from the criminal process including extradition. 7] A TWIST IN THE TALE Following the decision, Pinochet was required to remain in England whilst the Home Secretary decided whether to continue proceedings for his extradition to Spain to face criminal prosecution under Section 7 (1) of the Extradition Act 1989. On the same day of the judgment a television program (News Night) in the U.K. carried an allegation made by a speaker in Chile that Lord Hoffman, one of the Judges that decided Pinochet's case in the House of Lords was likely to have been biased EsQ legal practice I 54

against Pinochet. Specifically, the allegation was that Lord Hoffman and his wife were strongly connected to Amnesty International, an organization invited by the court to address it as amicus curiae. On December 10, 1998, Pinochet's lawyers lodged a petition asking that the order of 25th November, 1998, be set aside and the opinion of Lord Hoffman be declared as to be of no effect.

considered its past decisions in R v. Gough (1993) AC 646 and Webb v The Queen (1994) 181 Crim LR 41. In Nigeria, our Supreme Court also has powers to set aside its own judgment. It is worthy of note that the exercise of its powers to reverse itself is rarely invoked by the Supreme Court in Nigeria. It is usually an uphill task to convince the Court to consider such reversal. The general principle of law is that a 8] THE PETITION judgment, order or decision of A new panel of the House of a court is presumed to be Lords was constituted. It had correct unless and until that none of the Judges that took presumption is rebutted and the decision of the 25th the judgment is set aside. it November, 1998. It was now subsists and must be obeyed. heard by Lord Browne See the case of Babatunde v Wilkinson, Lord Goff of Olatunji (2000) 2 SC 9. Chievely, Lord Nolan, Lord Even though it may be a tough Hope of Craighead and Lord task the Supreme Court has Hutton. Oral judgment was always stated its preparedness given an 17th December, 1998 to reverse its own decision in while reasons given on 17th appropriate cases. See the case January 1999. The Court set of Samauel Oke v Lamidi aside the order made on the Aiyedun (1986) 4 SC 81, Ukpe 25th of November, 1998 and Orewere & Ors v. Rev. Moses directed a re – hearing before Aberigbe & Ors (1973) 1 a fresh panel. The Court heard ANLR pt 14 pg 1, Attorney very detailed submissions by General of Federation v. lawyers on both sides and Guardian Newspapers 1999 5 55 I EsQ legal practice

S.C (Pt III) 59. The rationale behind this power was graphically and elegantly stated by Oputa JSC in Adegoke Motors Ltd v Dr Adesanya & Anor (1989) 5 SC 113, (1989) 3 NWLR (pt 109) 250 @ 274. The learned jurist said inter alia "We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be short – sighted arrogance not to accept this obvious truth. It is also true that this court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this court has been given per in curiam, such decision shall be overruled. This court has the power to over – rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error." 9] THE SECOND APPEAL The second House of Lords appeal on the Extradition of Pinochet from the United

Kingdom to Spain began almost immediately after the first appeal decision was set aside. A new panel was set up to now include Lords Browne Wilkinson, Goff of Chievely, Hope of Craighead, Hutton, Saville of Newdigate, Millet and Phillips of Worth Matravers, a full panel of law lords. After taking fresh arguments judgment was delivered on 24th March 1999 and reported in (1999) 2 All ER 99, the Times Report of 25th March 1999 and also at (1999) 2 WLR 827. In allowing the appeal, the House of Lords again reversed the decision of the Divisional Court of the Queen Bench Division and held that General Pinochet could righty be extradited to Spain to face criminal charges and prosecution. The court specifically held that; The requirement in Section 2 of the Act of 1989 that the alleged conduct which was the subject of the extradition request be a crime under United Kingdom law as well as the law of the requesting state was a requirement that the conduct be a crime in the

www.esqlaw.net

United Kingdom at the time when the alleged offence was committed and; that extraterritorial torture did not become a crime in the United Kingdom until Section 134 of the Criminal Justice Act 1988 came into effect on 29 September 1988; and that, accordingly, all the alleged offences of torture and conspiracy to torture before that date and all the alleged offences of murder and conspiracy to murder which did not occur in Spain were crimes for which the applicant could not be extradited, ii) Allowing the appeal in part that, a former head of state had immunity from the criminal jurisdiction of the United Kingdom for acts done in his official capacity as head of state pursuant to Section 20 of the State Immunity Act 1978 when read with article 39(2) of Schedule 1 to the Diplomatic Privileges Act 1964. Torture was an international crime against humanity and jus cogens and after the coming into effect of the International Convention against Torture and other Cruel Inhumane or Degrading Treatment or Punishment 1984, there had been a universal jurisdiction in all the Convention State parties to either extradite or punish a public official who committed torture and in that light of universal jurisdiction, the State parties could not have intended that an immunity for ex â&#x20AC;&#x201C; heads of states for official acts of torture would survive the ratification of the Convention. 10] IMPLICATIONS OF PINOCHET'S FAILURE TO SECURE SOVEREIGN IMMUNITY The above court proceedings literally changed the law and 'opened the eyes of the law'. The decision in the Trendtex case which disallowed sovereign immunity from being a shield against commercial liability had gone full circle to recognize that irresponsible leadership or leaders who traumatise, torture, oppress and maltreat their subjects and others can be held accountable anywhere in the world, even if their government or successors seek to protect them. For example, torture as an act that is condemnable globally and where the state is involved, the condemnation is even louder. Even though faced

www.esqlaw.net

with tough decisions in its effort to combat terrorism, the George W. Bush led administration in the United States of America could not defend its adoption of torture like interrogation techniques of suspects detained at Guantanamo Bay. The attempt was seriously condemned within and outside the United States and the 1863 "famous instruction" by President Abraham Lincoln that "military necessity does not admit of cruelty" should not be discarded. In fact the new interrogation techniques employed by the Bush administration was found to be in violation of the Geneva Convention in the case of Hamdan v. Runsfeld by the United States Supreme Court. The world has witnessed trials of war criminals since the 2nd World War. These include world the indictment and trials of persons accused of crimes against humanity (torture included). The world is also now witnessing trials and extradition of government leaders and Heads of State, who commit financial crimes in their countries but seek to find safe havens overseas. The Trial of Pinochet has changed the jurisprudence of sovereign immunity. We wait to see how far this change would go. African leaders, particularly Nigerian leaders should take note as the law of sovereign immunity is eroding fast and they may not have a shield when the day of reckoning comes. Pinochet's last years saw his health failing rapidly. Apart from the London Trials, in 2004 a Chilean Judge, Juan Guzman Tapia, ruled that Pinochet was medically fit to stand trial and placed him under house arrest. By the time he died in December 2006, he had about 300 criminal charges pending against him worldwide for numerous human rights violations, tax evasion and embezzlement of over US $ 28 million of Chilean state funds. 11] CONCLUSION I am inclined to support the view that official corruption is a crime against humanity. Official corruption denies people basic amenities such as electricity, water, roads, hospitals, emergency services, security and other essentials of life thereby leading to unnecessary deaths, abject poverty and suffering by the

people if a country. Official corruption can be equated to torture under which Pinochet was to be extradited and prosecuted. I began this paper by stating that international law and the doctrine of sovereign immunity is still in a formative stage and it has continued to witness changes as witnessed in the Trendtex and more significantly, the trials of Augusto Pinochet. It is however regrettable that Nigerian law is yet to establish clear principles on this important aspect of law. While the United Kingdom has the State Immunity Act of 1978, their courts have also had occasion to pronounce on the law in cases. Nigeria .is even yet to participate and be a signatory to the United Nations Convention on Jurisdictional Immunities of States and their Property. Senegal became a signatory in 2005, while Sierra Leone became a signatory in September 2006. The changes in the attitude of the law towards the notion of Sovereign Immunity is further confirmed by the comments posted on page 52 of "The Commonwealth Lawyer" Vol. 20, No1, April 2011 which is the journal of the Commonwealth Lawyers Association. The journal noted "that in the face of regional and international developments, former understandings of State and Nation and of Sovereignty were increasingly out-dated". It continued further: "At a Supranational level, this idea has already raised the sceptre of a new legal order based on a European super state with the potential further to transcend traditional views of sovereignty and the sovereign state. There is thus a move towards a gradual erosion of many areas hitherto covered by sovereign immunity. The International Criminal Court has increased the intensity of its work over the years. Erstwhile dictators and strongmen are being made accountable for their misdeeds and sovereign immunity does not count for much. Even issues of International Rule of Law are now engaging the attention of National Courts and domestic Judges in different jurisdictions. I wish to end this paper with the words of learned author Olasupo Shashore SAN in his

work which I referred to earlier where he wrote at pages 193-194. "At present Nigerian law on the subject of sovereign and diplomatic immunity leaves much to be desired. Case law does not show any real consistency in approach to the subject, sometimes leaving the impression that one or the other doctrine of immunity applies in Nigeria. Even where the restrictive immunity has been alluded to by the courts in the absence of any real authority decisions all open to doubtful application and ambiguity. Furthermore, there is no legislation for state immunity leaving the judiciary to struggle with the present state of customary international law of other countries. This is not to suggest that one advocates a total adoption of developments obtaining in other countries such as United Kingdom and United States. The purpose of reform is to recoginze the need to provide predictable outcomes to proceedings in which the plea of immunity is taken and the scope of its application in this jurisdiction." As students of Law and future generation lawyers who will practise law locally and internationally in the global village, I invite you to think further and deeper on the topic of sovereign immunity and accountability of our leaders. Thank you for your attention. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

EsQ legal practice I 56

NIGERIA: INJUNCTIONS PENDING ARBITRATION: A LEGAL MYTH?

court grants an order of injunction at its discretion as an equitable relief either to protect the rights of the applicant or preserve the subject matter of a dispute pending the determination of a case (Anthony v. Surveyor-General, Ogun State (2007) ALL FWLR (Pt. 354) 375 at 390. Although the Courts also have the powers to grant mandatory injunctions, 57 I EsQ legal practice

our focus here is to consider the powers of the court to grant preservative orders pending the hearing and determination of an arbitration proceeding. A comparison between the provisions of the English Arbitration Act, 1996 (the "English Arbitration Act") vis-Ă -vis the provisions of the Arbitration and Conciliation Act, Cap A.18, Laws of the Federation of the Federal Republic of Nigeria, 2004 ("the Arbitration and

Faruq Abbas Associate Counsel, Strachan Partners

Conciliation Act") together with a review of Nigerian judicial authorities aids in establishing whether or not Nigerian Courts have and exercise the powers to grant injunctive reliefs pending arbitration. Powers of the English Court to grant an Order of Injunction Pending Arbitration Section 44 (3) of the English

www.esqlaw.net

Arbitration Act expressly provides that a Court may in cases of urgency; grant an order of injunction for the preservation of an asset or evidence pending the hearing and determination of an arbitration. Section 44 (5) of the English Act goes further to provide that a Court would only have the powers to grant an order of injunction pending arbitration where the arbitral tribunal lacks the power to grant the order of injunction or where the tribunal is for any reason, unable to grant same. The provisions of the English Arbitration Act above therefore make it crystal clear that the power of the English Courts to grant injunctive reliefs pending arbitration is not in doubt.

the Power to Grant an Order of Injunction Pending Arbitration? Generally, the position of the law is that, where a dispute is pending before an arbitral tribunal, the arbitral tribunal shall have the powers to grant interim and injunctive reliefs in favour of any of the parties pending the determination of the arbitration. (Section 13 (a) of the Arbitration and Conciliation Act Unlike the English Arbitration Act, the Arbitration and Conciliation Act, does not contain any provision, which expressly endows the Nigerian Courts with the power to grant an injunctive relief pending arbitration. Notwithstanding this omission in the ACA, it is our view that this lacuna is cured by the provisions of Article 26 Does A Nigerian Court Have (3) of the Arbitration Rules,

www.esqlaw.net

contained in the First Schedule of the Arbitration and Conciliation Act1which provides that a Nigerian court can grant an order of interim or preservative injunction pending the hearing and determination of an arbitration proceeding. Thus, since the Rules of the Arbitration and Conciliation Act presumes that a party can make an application to the Court for interim measures notwithstanding the presence of an agreement to arbitrate, it is submitted that it simply goes without saying that a party to an agreement to arbitrate, can approach the Court for an order of interim measures in rare cases where the arbitral tribunal has not been constituted due to no fault of the Applicant or where the arbitral tribunal is unable to hear and grant an

application for interim measures due to a logistical conundrum. Furthermore, the power of a Nigerian Court to grant an order of injunction pending arbitration is traceable to the provisions of Section 13 of the Federal High Court Act and Section 18 of the High Court of Lagos State Law, which endows both the Federal and State High Courts with the powers to grant an order of interim injunctions where it will be just and convenient to do so. Judicial Attitude to Applications for Injunction Pending Arbitration The attitude of the Nigerian judiciary to applications for injunction pending arbitration can be categorized into two schools of thoughts. The first school of thought believes that EsQ legal practice I 58

a Court can only grant an injunction in support of arbitration if the entire issues in dispute between the parties are brought before the Court. Thus, this school of thought believes that an action which is instituted for the sole purpose of obtaining an injunctive relief pending the hearing and determination of an arbitration is bound to fail because the Court's jurisdiction to entertain a suit can only be invoked when the entire issues in dispute is brought before the Court. The judicial authority, which is usually brandished in support of this school of thought is the case of NV Scheep v. MV S. Araz (2000) 15 NWLR (Pt. 691) 622 where the Supreme Court held that a Court would only be able to grant an interim measure in support of arbitration where the issues in dispute between the parties have been submitted to the Court for its determination. In this case, the Court refused to grant an interim order for security in support of an arbitration proceeding in London because the Claimant in the suit had not submitted the issues in dispute between the parties for the determination of the Court. The Court therefore held that the admiralty jurisdiction of the Federal High Court could not be validly invoked for the sole purpose of obtaining security for an award in respect of the on-going arbitration in London. In essence, the Supreme Court simply ruled that the Claimant ought to have approached the 59 I EsQ legal practice

arbitral tribunal for an order for interim relief since the arbitral tribunal was responsible for determining the issues in dispute between the parties. The second school of thought believes that a Court has the power to grant an order of injunction pending the hearing and determination of an arbitration proceeding. This school of thought however believes that the power to grant injunctions pending arbitration should only be exercised in rare and deserving cases. In Owners of

the MV Lupex v. N.O.C.S Ltd (2003) 6 S.C. (Pt. II) 62 at 73, the Supreme Court held that a party to an arbitral proceedings would be permitted to institute an action for injunctive reliefs in Court during the pendency of the arbitral proceedings, if there is a "strong, compelling and justifiable reason" for such an action. This position was re-affirmed by the Court of Appeal in Maritime Academy of Nigeria v. A.Q.S (2008) All FWLR (Pt. 406) 1872 at 1895 Para B-C. In Lignes Aeriennes

Congolaises v. Air Atlantic Nigeria Ltd (2006) 2 NWLR (Pt. 963) 49 the Court of Appeal held that the choice of arbitration does not bar resort to the Court to obtain security for any eventual award. Also, in the recent case of Statoil Nigeria Limited v. Star Deep Water Petroleum Limited & 3 Ors (Suit No. FHC/L/CS/1452/2013) (Unreported)2, Honourable Justice Buba held that the Federal High Court has the jurisdiction and power to grant an order of injunctive reliefs pending arbitration,

www.esqlaw.net

and that this power would only be exercised in deserving cases. His Lordship further held that the power of the Court to grant injunctive reliefs pending arbitration is derived from the provisions of Article 26 (3) of the Rules made pursuant to the Arbitration and Conciliation Act and Section 13 of the Federal High Court Act. Lastly, in Lagos State Government v. PHCN & 2 Ors (2012) 7 CLRN 134, the Lagos State High Court held that it had the jurisdiction to grant an order of interim reliefs pending arbitration, notwithstanding the fact that an arbitration proceedings was on-going between some parties to the action. Just like the Statoil Case cited above, the Lagos State High Court relied on the provisions of Article 26 (3) of the Rules made pursuant to the Arbitration Act in arriving at this decision.

irrespective of the fact the entire issues in dispute between the parties have not been submitted for the determination of the Court. Also, the mere fact that Article 26 (3) of the Rules was not pronounced upon by the Supreme Court in MV S. Araz's Case goes further to show that the principal issue which was considered by the Court in MV S Araz's Case is whether the admiralty jurisdiction of the Federal High Court could be activated by an action for security for damages in respect of an ongoing arbitration, and not whether the Federal High Court could grant an order of injunction pending arbitration. Furthermore, in MV S. Araz's case, the Applicant for an order for interim reliefs pending arbitration did not adduce any evidence to show why it did not bring the application before the Arbitral Tribunal before bringing it to theCourt. Thus, the mere fact Should the Case of NV that the Applicant could have Scheep v. MV S. Araz (2000) brought the application for 15 NWLR (Pt. 691) 622 Act as interim reliefs before the a Bar Against the Granting of Arbitral Tribunal, but it failed an Order for Injunction to do so, is enough ground for Pending Arbitration? the Court to have refused to It is submitted that the case of grant the order for interim NV Scheep v. MV S. Araz reliefs pending arbitration. (Supra) ought not to be This is because an application permitted to act as a bar for interim reliefs pending against the granting of an arbitration ought only to be order of injunction pending made to the Court in rare arbitration because the cases where the Arbitral provision Article 26 (3) of the Tribunal cannot consider it or Rules made pursuant to the where it cannot be made Arbitration Act is quite clear before the Arbitral Tribunal that a Court has the power to due to a delay in the grant an order of injunction empanelment of the Arbitral pending arbitration Tribunal.

www.esqlaw.net

Lastly, the law is well settled that judicial precedents are not of much value in cases involving the exercise of discretion. See: Dokubo-Asari v. FRN (2007) 12 NWLR (Pt. 1048) 320 at 350. Thus, since the decision of a Court to either grant or refuse an application for injunction pending appeal/interim measures pending arbitration is based on the exercise of judicial discretion, it is submitted that the Court ought not to allow the exercise of its judicial discretion to be fettered by the decision of the Supreme Court in MV S. Araz's Case. In conclusion, it is submitted that Nigerian Courts have the power and jurisdiction to grant interim injunctions pending arbitration (of course this is in cases where the arbitration panel is unable to do so) and this power can be exercised notwithstanding the fact that the subject matter of the dispute between the parties is not before the Court. This is because since an application for an interim relief is usually made pending the hearing and determination of an arbitration proceeding, it would be illogical for the parties to submit the dispute which they have already agreed to refer to arbitration, to the Court just because either of them wants to obtain an interim relief pending arbitration. Thus, every application for injunction pending arbitration should be considered on its own merit and the Courts should not hesitate to grant an

application for injunction pending arbitration especially in cases where there is an urgent need to preserve the subject matter of an arbitration or in cases where a party has been unable to bring an application for injunction before an arbitral tribunal due to a delay or logistical conundrum in the empanelment of the arbitral tribunal. Footnotes 1 A request for interim measures addressed by any party to court shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

EsQ legal practice I 60

ENHANCING AFRICA AS THE ARBITRATION HUB Chief Mrs Tinuade Oyekunle has contributed immensely to the development of Arbitration in Africa. Lere Fashola paid her a courtesy visit recently and she bears her mind on some of the most critical issues facing African Arbitration today. Africa seems to be recording huge developments in investments and the economy but can Africa Now Attract International Arbitration? conomic Development of any Country or region depends on its investments capacity both inwardly ( i.e within its territory) or outwardly (i.e by its interrelationship with the nationals of other countries). Consequently, in other to enhance economic growth it is important that

61 I EsQ legal practice

there should be a vibrant increase An expert recently observed that the appointment of arbitrators, conciliators and committee members at the International Court of Arbitration has been skewed in favour of Europe and America. She noted while Western Europe, which contributes just one per cent cases has 47 per cent Arbitrators and North America and Canada with similar percentage of case generation contribute 23 per cent of the Court's arbitrators, Africa which generates 16 per cent of cases, provides two per cent arbitrators. What factors account for this and what effort is in place to change the tide?

A simple definition of 'an arbitrator' is 'a person chosen to settle a dispute between two parties'. The classification as to percentages posed by your question may (or may not) be true, but the factors responsible for the inequality of the respective percentages should not be seen as due to some prejudice. Arbitration has a long history of use in various countries of the world. Even in Nigeria customary arbitration

www.esqlaw.net

has been in use since very early days when communities utilize the rules of customary arbitration in getting respected elders in the community to settle their disputes rather than resort to the Courts. The first Arbitration statute in Nigeria was the Arbitration Ordinance of 1914 which later became Chapter 13 of the Revised laws of Nigeria, 1958. This statute became the law of the Regions and later the States. Consequent upon the development of commerce and interrelationships with foreigners and foreign countries, the existing statute was inadequate to cope with the settlement of disputes with foreign entrepreneurs. The case stated procedure under the 1958 statute which allowed for counsel of either party to the arbitration to state a case for the opinion of the High court judge was regarded as unfair and obnoxious to settlement of commercial dispute particularly where one of the parties ( the foreign entrepreneur) was not allowed to bring in foreign counsel of his own choice and where he understood very little of the procedures of the Nigerian courts.

commerce worldwide in the early 20th century, and the persistent discussion of the new world economic order with the United Nations Organizations, the European Union, the Organization of African Unity, the Economic Commission for Africa, the Asian African Legal Consultative Commission, the clarion call to remove the disparity in commerce was heeded and Arbitration issues was put on the agenda of the General Assembly of the United Nations. The matter was referred to the United Nations Commission on Trade Law (UNCITRAL) a specialized commission of the United Nations, created by the General Assembly in 1966 in order to harmonize and unify international trade laws.

In order to understand the importance of UNCITRAL in the task referred to it, it is worthwhile knowing that its membership at the time was limited to 36 states chosen from among the United Nations membership on a regional basis in order to assure that it was broadly representative of the world's principal legal, social and economic systems. The regional distribution of the Commission as determined by the General Assembly is â&#x20AC;&#x201C; This apparent inequality Africa 9, Asia 7, Eastern before the law encouraged Europe 5, Latin America 6, foreign entrepreneurs to Western Europe and others 9, ( carefully, at the onset of the the category described as negotiation, provide for other â&#x20AC;&#x153;othersâ&#x20AC;? included Australia, methods of settlement of Canada, New Zealand and the dispute by arbitration under United States). Observers the auspices of an were also allowed to particiInternational Institute, the pate in the work of the rules of which they were Commission except that they familiar with e. g. the Rules of had no right to vote. Voting the International Chamber of rights were not utilized during Commerce (i.e the ICC Rules) the work of UNCITRAL because decisions were reached by consensus. Those With the rapid growth of

www.esqlaw.net

who attended the UNCITRAL sessions were a mix of academic specialists in commercial and comparative law, practicing lawyers and members of government ministries with years of experience in international law making. I am happy to state that Nigeria took active participation in the work of UNCITRAL because of its adverse experience with foreign entrepreneurs at disputes resolution when commercial agreements broke down. Recognizing the value of arbitration and its importance in the context of international trade law, in 1976 UNCITRAL completed its work on the UNCITRAL Arbitration Rules. The UNCITRAL Arbitration Rules are a set of unique Rules, recommended by the General Assembly of the United Nations and designed as model law to serve all legal, economic and social system in practically all disputes and in all geographical regions of the world. The Rules have been widely accepted and extensively used throughout the world. In 1988, in order to provide an up to date law on arbitration in Nigeria the Arbitration and Conciliation Decree 1988 was promulgated and it was described as 'An act to provide a unified legal frame work for fair and efficient settlement of commercial disputes by arbitration and conciliation and to make applicable the convention on the Recognition and Enforcement of Arbitral Awards (New York Convention) to any award made in Nigeria or in any contracting state arising out of international commercial arbitration. The Act came into

force on 14th March, 1988. It is worth noting for the purpose of clearer understanding of the implication of the Model law that Arbitration Rules, whatever their origin, become legally a part of the contract of the parties by being incorporated into it by reference, thus arbitration rules have the effect of contractual obligations not the compulsion of law. Parties who have not chosen to resolve their disputes by arbitration may resort to litigation through the Courts. However, while arbitration derives from contract and its procedures are often governed by rules incorporated by reference into the contract, international commercial arbitration does not exist in a vacuum outside the sphere of national law; this is because in order to have a legally binding arbitration there must be national law permitting parties to choose to arbitrate instead of submitting their dispute to a national Court. Also laws are needed to direct national Courts to recognize agreements to arbitrate and to refer to arbitration disputes that the parties have agreed to arbitrate. In addition, national laws generally leave the choice of detailed arbitral procedures to the parties or to arbitration rules that parties may have agreed to use, such laws usually specify the basic procedures to be followed when the parties have not otherwise agreed. In considering the relationship of national laws to arbitration rules, it must be realized that most national laws establish mandatory procedural EsQ legal practice I 62

Arbitration and ADR has just been recently released. Arbitration under the ICC Rules of Arbitration is a formal procedure leading to a binding decision from a neutral arbitral Tribunal susceptible to enforcement pursuant to both domestic arbitration laws and international treaties such as the New jurisdictions in Nigeria are also looking into adopting the York Convention. same process. Lagos state has also passed the Arbitration The ADR (amicable dispute law 2009 and Rules which resolution) Rules aim to projects Lagos as a seat of facilitate a negotiable settlearbitration. ment with the assistance of an independent neutral. The At a recent forum in London, default procedure under the experts agree that while litigation ADR Rules is mediation, but appears the best option for the procedures also encomdispute resolution in London, Arbitration is preferred in Nigeria. pass conciliation, neutral evaluation and a variety of Why is arbitration the better option? combinations of these and other techniques. I think this suggestion has been quoted out of context. There is no preference in the Both sets of Rules provides for two regimes of litigation and administered procedures arbitration both in England which requires parties to file and Nigeria. Arbitration is an application with the regarded as a private law International Court of system for the settlement of Arbitration(“the court”) for disputes under which the arbitration or the International parties agree to appoint their Centre for ADR (“the Centre”) own judge or judges (arbitra- for ADR as appropriate. tor(s)) who will decide according to their agreement The key innovation under the and the parties agree to be bound by their decision. It is 2012 Rules deals with – different from litigation which (1) The general provisions is a public law system and the Arbitral Tribunal whereby parties refer their (2) Improving time and cost disputes to the State Court for efficiency – the inclusion resolution and no previous of case management agreement is necessary for conference to consult litigation. Also in Litigation a parties on procedural trial Court consists of a measures which may judge(s) appointed by the enhance the time table of State and proceedings are the arbitral proceedings. public and open while Examples of such case procedures are in accordance management techniques with the Rules of Court. are listed in APPENDIX IV of the Rules and includeArbitration takes a vibrant place in the English judicial (a) Bifurcating the system, under the recent UK proceedings or rendering Arbitration Act 1996. London one or more partial is very popular as a place of awards on key issues, arbitration chosen by parties, when doing so may particularly in International genuinely be expected to Arbitrations. result in a more efficient resolution of the case. (b) Identifying issues that The ICC recently released its new rules. What are the key can be resolved by Innovations under the 2012 ICC agreement between the Rules? parties or their experts. The International Chamber of (c) Identifying issues to Commerce (ICC) was founded be decided solely on the in 1919, and its objective is to basis of documents rather facilitate international than through oral commerce as a source of peace evidence or legal and prosperity throughout the arguments at a hearing. world. (d) Production of documentary evidence: Its 2012 New Rules of (i) requiring the

In order to make African countries favourable forum for place of arbitration Africa cannot afford to stand aloof. Security of African territory must also be enhanced, foreign investors will only thread on soils with the rule of law that would protect their operations, security of their workers and also ensure their profits. Protection of such interests is reciprocal. requirements that must be observed in order to satisfy the concept of fairness and the public policies of the State whose law governs the arbitration. Consequently, the procedures established by arbitration rules are subject to any mandatory provisions of the national laws that governs the arbitration. Hence the relationship between arbitration rules and national laws is expressly recognized in the UNCITRAL Arbitration Rules ( Article 1 (2)) which states as follows:“These Rules shall govern except where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail”. The philosophy of arbitration practice is for Arbitrators who the parties have appointed to decide their disputes to ensure that any award resulting from such resolution shall be enforceable. National laws frequently contain provisions for recognition and enforcement of awards made in the same State in which they are to be recognized and enforced. However, in the case of foreign arbitral awards, a critical role is played by international law and treaties. The effective instrument for the recognition and enforcement of foreign arbitral awards is the New York Convention 1958 to which Nigeria acceded to on 17th March, 1970, subject to the reciprocity and commercial reservations provided for in Article 1 (3). The Convention has been implemented under the Arbitration and Conciliation Act 1988 Cop 19 section 54 (1) Second Schedule.

Region, subsequent to the adoption of the UNCITRAL Rules, have realized their disadvantaged position and have renewed their efforts to participate in the development of arbitral practice. In addition recent Arbitration laws in Africa have drawn distinctions between domestic and international arbitrations and, in most cases, have made separate provisions for either each type or retain the same provisions for both, for example, The Arbitration and Conciliation Act of Uganda in 2000, is said to apply to both domestic and international arbitration, except as otherwise provided in any particular case. Education of Africa in the art of arbitration has also contributed to increase in the lists of brilliant arbitrators from the Region. The concerted efforts exhibited by the African countries have accorded them right to utilize their natural resources and to make their voices heard in commercial circles. In order to make African countries favourable forum for place of arbitration Africa cannot afford to stand aloof. Security of African territory must also be enhanced, foreign investors will only thread on soils with the rule of law that would protect their operations, security of their workers and also ensure their profits. Protection of such interests is reciprocal.

Other factors that have enhanced the use and practice of arbitration and other ADR mechanisms consists of the amendment of Rules of Court (e.g in Lagos State judiciary) to embrace application of Arbitration and other ADR mechanisms to resolve commercial disputes before the Court by the appointment of ADR Judge and the The factors that accounted annexation of the multi-door previously for the deluge in Court House to the Courts. the number of arbitrators are This same mechanism has generally fading away because been adopted by the High developing countries particuCourt in Abuja and Port larly countries in the Africa Harcourt. Other State 63 I EsQ legal practice

www.esqlaw.net

Mrs. Tinuade Oyekunle is one of Nigeria's most respected International Arbitrator. She is a seasoned Chartered arbitrator, handling complex international commercial disputes under the auspices of arbitral institutions such as ICC, LCIA, and ICSID. The Managing Partner & founder of Tinuade Oyekunle & Co., Mrs Oyekunle served as Director, Public International Law for the Federal Republic of Nigeria, as Legal Adviser to the Council of Ministers and Heads of States of the Organisation of African Unity(now, African Union),the Asian African Legal Consultative Committee (AALCO) & the International Maritime Consultative Organisation (IMO). A Fellow of the Chartered Institute of Arbitrators (UK), a member of the institute's Board of Management & Chairman of the Education and Membership committee; member, Board of Governors of the Caro Arbitration Center, Governing Council of the Lagos International Centre for Commercial Arbitration. She was recognised as on of the leading women in Arbitration by Global Arbitration Review, â&#x20AC;&#x153;Women in Arbitrationâ&#x20AC;?

the arbitral tribunal at which arrangements for a hearing can be discussed and agreed and the arbitral tribunal can indicate to the parties issues on which it would like the parties to focus at the hearing. (h) Settlement of dispute: (i) informing the parties that they are free to settle all or part of the dispute either by negotiation or through any form of amicable dispute resolution methods such as, for example, mediation under the ICC ADR Rules; (ii) Where agreed between the parties and the arbitral tribunal, the arbitral tribunal may take steps to facilitate settlement of the dispute, provided that every effort is made to ensure that any subsequent award is enforceable at law. It is important to note that control of time and cost is very essential in all arbitral proceedings. This guidance is even more helpful in complex international arbitration cases.

(3) Multi-party, multi-contract arbitration and consolidation. There is provision for joinder of additional party to the arbitration. The date on which the Request for joinder is received by the Secretariat shall be deemed to be the date of the commencement of the arbitration against the additional party, but no additional party may be joined after the confirmation or appointment of any arbitrator, unless all parties including the additional party, otherexperts) so as to avoid wise agree. repetition and maintain a Also in multiparty focus on key issues. arbitration claims may be (f) Using telephone or made by any party video conferencing for against any other party procedural and other but no claims may be hearings where attenmade after the Terms of dance in person is not Reference are signed and essential and use of IT approved by the Court that enables online without the authorization communication among of the arbitral tribunal. the parties, the arbitral In addition claims arising tribunal and the out of or in connection Secretariat of the Court. with more than one (g) Organizing a precontract may be made in a hearing conference with single arbitration,

The ADR (amicable dispute resolution) Rules aim to facilitate a negotiable settlement with the assistance of an independent neutral. The default procedure under the ADR Rules is mediation, but the procedures also encompass conciliation, neutral evaluation and a variety of combinations of these and other techniques. parties to produce with their submissions the documents on which they rely; (ii) avoiding requests for documents production when appropriate in order to control time and cost; (iii) in those cases where requests for document production are considered appropriate, limiting such requests to documents or categories of documents that are

www.esqlaw.net

relevant and material to the outcome of the case; (iv) establishing reasonable time limits for the production of documents; (v) using a schedule of document production to facilitate the resolution of issues in relation to the production of documents. (e) Limiting the length and scope of written submissions and written and oral witness evidence (both fact witnesses and

EsQ legal practice I 64

tent judicial authority at irrespective of whether have been confirmed or any time prior to making such claims are made appointed. an appointment for such under one or more than It should be noted that measures and in approone arbitration agreement when arbitrations are priate circumstances under the Rules consolidated, they shall thereafter, pursuant to the Also two or more be consolidated into the Rules; any application for arbitrations pending arbitration that comsuch measures from a under the Rules may be menced first, unless competent judicial consolidated into a single otherwise agreed by all authority shall not be arbitration by the Court parties. deemed to be an infringeand at the request of a ment or a waiver of the party where; (4) Emergency arbitrator arbitration agreement; provisions. (a) the parties have any such application and agreed to consolidation; Article 29 of the 2012 any measures taken by or Rules provides for the the judicial authority appointment of an (b) all the claims in the must be notified without Emergency arbitrator arbitrations are made delay to the Secretariat. where a party needs under the same arbitraurgent interim or tion agreement; or (5) Ethical issues in International conservatory measures (c) where the claims in Arbitration that cannot await the the arbitrations are made Ethics have been said to constitution of an arbitral under more than one ensure legitimacy in tribunal. The Emergency arbitration agreement, the international arbitration arbitrator's decision takes arbitrations are between so that awards emanating the form of an Order and the same parties, the from the decision of the parties undertaken to disputes in the arbitraarbitrators may be easily comply with any Order tions arise in connection accepted by parties rather made by the Emergency with the same legal than lead to a continuum Arbitrator. The relationship and the court of Court cases and Emergency Arbitrator finds the arbitration subsequent ill-feelings Rules (Appendix V of the agreement to be compatiamong commercially new Rules) apply only to ble. friendly parties. The parties that are either The Court while deciding huge focus on Ethics signatories of the whether or not to arose from among other arbitration agreement consolidate may take things the high stakes in under the Rules that is account of any circumArbitration, disputes relied upon for the stances it considers to be involving huge sums of application or successors relevant including money and the expansion to such signatories. It is whether or more than one of trade among global important to note that the of the arbitrators have communities with Emergency Arbitrator been confirmed or different cultural and provisions are not appointed in more than ethnic philosophies, with intended to prevent any one of the arbitrations, less instinctive trust either party from seeking urgent and if so whether the in the adjudicators and/or interim or conservatory same or different persons the administering measures from a compe65 I EsQ legal practice

institutions. Under the 1998 ICC RulesSection 7 (1) requires 'every arbitrator to remain independent of the parties involved in the arbitration'. Section7 (2) also requires a prospective arbitrator (before appointment or confirmation) to sign a statement of independence and disclose in writing to the Secretariat any facts or circumstances which might be of such a nature as to call into question the arbitrator's independence in the eyes of the parties. The Secretariat is also requires to provide such information to the parties in writing and fix time for any comments from them. Section 7 (3) The matter of disclosure under sections 7 (1) & (2) above is a continuing duty and any facts or circumstances of a similar nature which may arise during the arbitration must be disclosed in writing. Failure to define the word “independence” (or to refer to “impartiality”) under the above clauses has resulted in controversy which had led to varied pronouncements from commentators. The new provisions in Article 11(2) of the 2012 ICC

www.esqlaw.net

Arbitration Rules have responded more positively to the growing business needs and the emphasis on the inevitable responsibility required of arbitrators in maintaining their impartiality and independence throughout the arbitral proceedings. Such responsibility embodies a duty to disclose any information that will be relevant to maintaining such obligations.

It should be emphasized that the maintenance of the Arbitrator's ethical obligation is very important to his functional role in dispute settlement. The Arbitrator is regarded as a quasi judicial officer whose impartiality and independence must be transparent in other to gain the confidence of the parties who have reposed their confidence in him.

is important to note that the party appointed arbitrator does not owe any allegiance to the party who appointed him. The party appointed arbitrator should maintain his impartiality and independence in Article 11(1) of the new ICC accordance to his undertaking Rules provides as follows:in the form of declaration signed by him prior to 1. Every arbitrator must be appointment. Any appearand remain impartial and ance of impropriety on the independent of the parties part of an arbitrator may affect involved in the arbitrathe confidence of other parties tion. and other members of the 2. Before appointment or Tribunal, which may lead to confirmation, a prospec- his removal. tive arbitrator shall sign a statement of acceptance, It should be emphasized that availability, impartiality the maintenance of the and independence. The Arbitrator's ethical obligation prospective arbitrator shall disclose in writing to is very important to his the Secretariat any facts or functional role in dispute settlement. The Arbitrator is circumstances which might be of such a nature regarded as a quasi judicial as to call into question the officer whose impartiality and arbitrator's independence independence must be in the eyes of the parties, transparent in other to gain the confidence of the parties as well as any circumwho have reposed their stances that would give arise to reasonable doubts confidence in him. The arbitrator is under an as to the arbitrator's obligation to inform himself impartiality. about what standards his The Secretariat shall conduct will be measured by provide such information and to conform with those to the parties in writing standards. and fix a time limit for any comments from them. The question the arbitrator 3. An arbitrator shall should try to reminiscence on immediately disclose in writing to the Secretariat is by what standard would a and the parties any facts reasonable man judge the issues relating to his impartialor circumstances of a ity and independence? The similar nature to those various standards that have referred to in Article 11 emerged (e.g. under the IBA (2) concerning the arbitrator's impartiality or Guidelines and other independence which may Institutional Arbitration Rules) are designed to protect arise during arbitration. the integrity of the process and to avoid unnecessary The provision in Article 11 (2) costs and delay in the arbitral above relating to 'reasonable proceedings. All efforts doubts' is of more objective should always be made by the effect than the subjective effect arbitrator(s) to work diligently of clause 7 (2) of the old Rule. and judiciously to issue valid and enforceable award(s) and forestall the intention of Ethical principles relating to recalcitrant parties who want Arbitrators are now on the to stall the arbitral process. It forefront of the arbitral practice both in domestic and must always be remembered that conduct and integrity are international arbitrations. critical to the legitimacy of International Arbitration. Under the ICC Rules arbitrators may be appointed by the parties or by the ICC Court. It Parties to a commercial

www.esqlaw.net

dispute which includes an arbitration agreement in it have the autonomy to choose whoever they like to adjudicate the dispute apart from the existence of numerous Institutional Rules of Arbitration such as the ICC, the London Court of International Arbitration (LCIA), the America Arbitration Association (AAA), the CIETAC Arbitration Rules 2012, (which deals with Arbitrations in the Public Republic of China (PRC) etc. There are also other rules of arbitrations in national laws. What is important is that at the onset of negotiation in contracts between parties, the parties should bear in mind the importance of including an adequate arbitration clause indicating the rules the parties intend to guide any arbitral proceedings that may arise if a dispute arises. Standard and suggested clauses have been proposed, under the ICC 2012 Rules, for use by parties who wish to have recourse to ICC Arbitration and/or ICC ADR Rules. Arbitration All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.

the ICC ADR Rules. Obligation to consider ADR In the event of any dispute arising out of or in connection with the present contract, the parties agree in the first instance to discuss and consider submitting the matter to settlement proceedings under the ICC ADR Rules. Obligation to submit dispute to ADR with an automatic expiration mechanism In the event of any dispute arising out of or in connection with the present contract, the parties agree in the first instance to discuss and consider submitting the matter to settlement proceedings under the ICC ADR Rules. If the dispute has not been settled pursuant to the said Rules within 45 days following the filling of a Request for ADR or within such other period as the parties may agree in writing, the parties shall have no further obligations under this paragraph.

Obligation to submit dispute to ADR, followed by arbitration if required In the event of any dispute arising out of or in connection with the present contract, the parties agree in the first instance to discuss and consider submitting the matter to settlement proceedings under the ICC ADR Rules. If the dispute has not been settled pursuant to the said Arbitration without emergency Rules within 45 days followarbitrator ing the filling of a Request for All disputes arising out or in ADR or within such other connection with the present period as the parties may contract shall be finally settled agree in writing, such dispute under the Rules of Arbitration shall be finally settled under of the International Chamber the Rules of Arbitration of the of Commerce by one or more International Chamber of arbitrators appointed in Commerce by one or more accordance with the said arbitrators appointed in Rules. The Emergency accordance with the said Rules Arbitrator provisions shall not of arbitration. apply. Optional ADR The parties may at any time without prejudice to any other proceedings, seek to settle any dispute arising out of or in connection with the present contract in accordance with

How to use these clauses Parties wishing to use ICC arbitration and/or ICC ADR should choose one of the above clauses, which cover different situations and needs. If the parties do not want the EsQ legal practice I 66

adopt their activities and behaviour to the requirements of the legal order which resultantly form stable, social and economic relationships; this should be the aspiration of most legal systems, particularly those under the democratic conditions. Other rationale involving fair and equitable treatment is that the administrative and political orders of the Host State's do not affect the basic expectations that were taken into account by the foreign investor at the time the investment was made. The deliberations on the matter of foreign investments are complex and time will not allow the discussion of the various ramifications in this interview.

Emergency Arbitrator Provisions to apply, they must expressly opt out by using the second of the two arbitration clauses. Parties are free to adapt the chosen clause to their particular circumstances. For instance, when providing for arbitration, they may wish to stipulate the number of arbitrators, given that the Rules of Arbitration contain a presumption in favour of a sole arbitrator. They may also wish to stipulate the language and place of the arbitration and the law applicable to the merits. When providing for ADR, they may wish to specify the settlement technique to be applied, failing which mediation, the default mechanism, will be used. The last clause above is a twotiered clause providing for ADR followed by arbitration. Other combinations of service are also possible. Combined and multi-tiered disputes resolution clauses may help to facilitate dispute management. However, it is also possible for 67 I EsQ legal practice

enormous jurisdictional implications. Nigeria has acceded to the ICSID Convention some of its citizens have been recorded as Arbitrators under the Centre's list. It may be advisable that Government make use of the expertise of these people when the need occurs.

Women in Arbitration: Lots of Talk. Any changes in recent times; what are the factors limiting women arbitrators? Arbitration is not the exclusive premise of men. An Arbitrator has been defined as a person chosen to settle dispute between two parties. It should be noted that, the person may be a male (man) or female (woman). Women have Even where the dispensations, always taken prominent part tax havens and other in arbitration and they have palliatives granted the foreign been severally appointed as investors appear attractive arbitrator(s) to settle disputes. problems from disputes As the dispute settlement arising have not been averted. mechanism gained promiMany African States including nence, women have taken their Nigeria gave overwhelming rightful place except that the support to the ICSID number was not as many as Convention and at the male arbitrators. adoption of the Convention there was a prevalent view In the 1980s there were few that the protection of foreign women in the international investors was coterminous dispute resolution community with the protection of the and it was realized that they general interest of developcould benefit significantly parties to file requests under ment in the third world from the creation of a network ICC ADR Rules or the ICC Countries. to enable them to share ideas, Rules for Expertise at any celebrate their achievements time, even after a dispute has and work together to find arisen or in the course of other Settlement of Investment disputes are generally ways to promote women in the dispute resolution proceedprovided for under the BITs field. A friend and colleague ings. and other multilateral treaties. of mine Louise Barrington According to Section 25 (1) of invited a small group of How will you assess the benefits of the ICSID Convention, women around the world who the various Bilateral Investment were active in dispute Treaties (BITs) and other Investment liberalization Treaties 'The jurisdiction of the Centre resolution to form an to Nigeria? Association of women shall extend to any legal Bilateral Investment Treaties dispute arising directly out of Arbitrators referred to as ArbitralWomen. (BITs) and other Investment an Investment between a Liberalization Treaties are of contracting State (or any great benefit to an emerging constituent subdivision or This is the birth of economy like Nigeria. Hence agency of a Contracting State, ArbitralWomen, Louise was in the continuous call by the designated to the Centre by touch with me and spoke to Government inviting investors that State) and a national of me at length about the particularly foreign investors another Contracting State , importance of forming the to come and invest in the which the parties to the women group. Another Country. The obligation of dispute consent in writing to colleague Mireze Phillippe States to provide â&#x20AC;&#x153;fair and submit to the Centre'. established an electronic equitable treatmentâ&#x20AC;? to foreign forum for the Group in year investors is a standard 2000. provision in modern BITs and When the parties have given their consent, no party may multilateral treaties concerning investment. Such fair and withdraw its consent unilater- The Group has grown to more ally. than 600 women from more equitable treatments are than 45 Countries of the usually associated with world. The Group continues stability, predictability and The question of what is an to advance the interest of consistency of the host State's investment under the women in arbitration and legal framework. The core Convention has attracted enhance their involvement in aspect of norms of law allows proactive debate and carries the practice of arbitration individuals and entities to

www.esqlaw.net

expedition when documents are requested, and allow the other party opportunity of On the question of what presenting his case. It is also advice I have for other women the duty of Counsel to grant arbitrators. I will only say to mutual respects to parties in them that being a good the proceedings rather than renown arbitrator is a being recalcitrant. developmental thesis of each individual woman but the top of the ladder is not impossible. Corruption in Arbitration. What I believe women possess rare are the risks and liabilities of Arbitrators? genes for integrity which if Corruption is not specifically developed make them dealt with or defined under perform excellently in any field of endeavour they chose, the Nigeria Arbitration and Conciliation Act and in most women Arbitrators must be other national Arbitration heard and not just seen and laws, but any such acts may they must uphold the independence, confidence and amount to misconduct and may result in challenge to the integrity that is required for arbitrator. In the celebrated the Arbitral profession in which trust is essential to gain Nigeria case of Taylor Woodrow (Nigeria) Ltd V the confidence of parties Suddenche Etna-werk GmbH whose cases are being adjudicated upon. In other for (1991) 2 N W L R (pt175) 602 amongst the acts that amount a women to be known and to misconduct are listed fraud respected in the field her and corruption. indelible reputation must preceed her and transmit worldwide particularly in On the question of what key characteristics make for the International Arbitration. I perfect International Arbitral humbly believe that any woman who works hard and Tribunal? diligently will achieve utmost Such key characteristics that record and reputation. There make a good (not perfect) International Arbitral Tribunal is nothing that cannot be achieved with hard work and I are independence, confidence and impartiality. commend that value to my female colleagues. On the question of what has been my experience in the International What are some of the likely Arbitration. problems faced by Arbitrators at My experience in the practice the Tribunal level? As has been seen above while of international arbitration has been overwhelming. I took up discussing the principles of the study of dispute resolution arbitration under the ICC as a challenge when I was a Rules, prompt attention to legal adviser in the Federal issues, is required from the Ministry of Industry and had parties as well as the arbitral to attend to matters that panel in order to safe costs. require interaction with However, my personal foreign entrepreneurs. One of experience in the practice of the most important part of my arbitration in Nigeria is that work in the Ministry was to delays are always caused by advise Government on parties and or their counsel commercial contracts and to who rather than remind themselves of the rules of the ensure that contracts entered into on behalf of Government Arbitral process and the procedures guiding them still were legally adequate and behave as if they are in court protect the right of parties. and thereby caused consider- One of the agreements that held a place in my memory able delay in proceedings by was the negotiation for the bringing frivolous applicaPeugeot automobile assembly tions and objections which plant. My legal colleagues usually cost delay and from the civil law country increase costs. wanted to put in a clause for settlement of dispute under In fact, Counsel representing the ICC Rules as well as apply parties in arbitration proceed- the provisions of ings need to acquire special INCOTERMS. I responded knowledge that arbitral that we also had a law on proceedings defer from those Arbitration under our 1958 in the courts. They should Laws but that did not go focus on the facts of the case, down well with them and they leave behind their fishing pointed to the case stated ArbitralWomen.

The general features of the Arbitral Women include amongst other things, networking, meeting other women in the field, organizing formal and informal events and gatherings, usually in conjunction with major International Conferences, locating speakers and practitioners in international dispute resolution forum around the world, assisting female law students in projects to develop their knowledge and skills in international arbitration. More importantly they sponsor annual awards in support of participants in the Vis Moot team competitors in Viema and Hongkong. These moots have contributed immensely to the development of young people in international arbitration. The youths get together, representing different cultures and had very intensive debates on the pros and cons of case scenarios put before them. There are judges present to determine winning teams. The activities of the ArbitralWomen are not done in isolation from the men in arbitration. Distinguished male arbitrators are usually invited to events organized by ArbitralWomen and such activities are a way of reminding the business and legal communities that women are active in the field of dispute resolution and are capable of diligent participation in that area of law. The involvement of women in International Arbitration has been gradual and as Louise said â&#x20AC;&#x153;we are nearer its beginning than its endâ&#x20AC;? but women arbitrators are stepping forward with positive sure footed steps. It is felt that the increase in the number in the legal profession and in the arbitration community is increasing e.g years ago women rarely represented parties in arbitration proceedings and other ADR mechanisms, but recently women are appointed as sole arbitrators, co-arbitrators, chairmen of arbitral tribunals and experts. A few of my colleagues from Nigeria including myself are also members of the

www.esqlaw.net

procedure of the law, we discussed the Incoterms provisions at length and also inserted only that part of it that was relevant to our negotiations. My experience during negotiations of various contracts on behalf of Government came in very useful when I represented Nigeria on the 6R (legal) Committee of the United Nations and on UNCITRAL during the discussion of the Model Law which was referred to earlier. I need to acknowledge that apart from my determination to understand the principle of ADR in theory and practice, I have been exceedingly blessed by eminent practitioners who recognized my interest as a young female practitioner from Africa and encouraged me to participate at a higher level. I was blessed to have brilliant, humble gentlemen arbitration practitioners like Prof. Pieter Sanders from the Netherlands, who was one of the drafters of the New York Convention (in fact the only survivor alive since the signing of the Convention) who also prepared the working draft of the UNCITRAL Model Law; Mr. Howard Holtzmann (who represented United States at the UNCITRAL working Group for the Model Law); Howard was one of the Judges who worked assiduously on the US- Iran Arbitration Tribunal, and a friend and mentor . Prof. Pierre Lalive of Switzerland; a renown International Arbitrator and an estate researcher of arbitration law. All these detribalized gentlemen took me under their wings and I was invited to join the Umbrella body of International Council for Commercial Arbitration at a very early age. Prof. Gerold Herrman who was originally working as the Legal Counsel of the United Nations in New York and who moved to Austrian Uno City when UNCITRAL moved there also became a great friend and when we meet there was always healthy interchange of how we are doing in Nigeria in the development of Arbitration. Prof. Pieter Sanders is going to EsQ legal practice I 68

The involvement of women in International Arbitration has been gradual and as Louise said â&#x20AC;&#x153;we are nearer its beginning than its endâ&#x20AC;? but women arbitrators are stepping forward with positive sure footed steps. celebrate his 100years birthday on September 21st, 2012 and I am delighted to have been invited to write reminiscence on him. When I was invited to ICCA, I was the youngest member, the only female and the only black person. I must say that I was received as a colleague and friend. There were thirty-five members representing all regions of the world. I still remember all my friends who are still in ICCA and those who have passed on with a lot of appreciation, respect and gratitude. In my little way, I have shared 69 I EsQ legal practice

knowledge with my colleagues in Nigeria particularly those members of the Chartered Institute of Arbitrators UK Nigeria Branch which I usually refer to as a family Branch. I believe fervently that no one person has the key to knowledge. Knowledge is transnational and trans-sexual. Both young and old are endowed with the knowledge and we must always act transparently and with humility. Knowledge shared transmits the world, scattered like pollen of flowers and you can never tell where the winds will transmit it,

either on your shores or beyond. I also owe a lot of my success to the Glory of God and its Divine direction in bringing me into the world through parents who appreciated the education of girl-child. My father, Chief James Adebiyi Adejumo was an educationist per excellence and my mother Chief Janet Adebisi Adejumo believed that Education must grow with proper up-bringing with respect not only for elders but with love to your neighbours. I am also blessed with a partner, my husband

Chief. Sunday Oladeinde Oyekunle who stood steadily behind me and encouraged my achievements. God in His mercies also in addition gave me 5 lovely children who grew up strongly along my working life and continue to encourage me in my work. Finally, I say to all my fellow female colleagues, we should hold on to our determination to succeed on our own hard work. We can do whatever we are determined to do, God being our help.

www.esqlaw.net

EsQ legal practice I 85

THE ROLE OF LAWYERS IN DIASPORA IN SHAPING QUALIFICATION AS A LEGAL PRACTITIONER IN NIGERIA AND CONTINUING LEGAL EDUCATION INTRODUCTION A Nigeria Lawyer in diaspora is a legal practitioner whose domicile is outside the shores of Nigeria. He might have been called to the Nigerian Bar or not; but he is a qualified legal practitioner (Solicitor or Barrister or both) where he is based.

two stages â&#x20AC;&#x201C; (i) at the University; and (ii) at the Nigerian Law School. There are now thirty six (36) accredited Law Faculties in Nigeria. Products of these institutions on graduation proceed to the Nigerian Law School for the Bar vocational training programme, which spans a period of twelve calendar months, inclusive of The Nigerian Lawyer in examinations and externship diaspora is usually well programme. A successful trained, highly skilled and candidate at the Bar Final competent. It can also be examinations is issued a assumed that he is patriotic qualifying certificate by the and keen to plough back his Council of Legal Education, expertise as much as possible, stating that he is qualified to especially if conducive be called to the Bar. He is atmosphere exists back home. thereafter considered (pursuant to his application), by the Body of Benchers for call to Nigerian Legal Education is the Bar if: (a) he is a citizen of moulded after the British Nigeria; (b) he produces a Legal Education; and stemming from the Unsworth qualifying certificate to the Benchers; and (c) he satisfies Commission's report and the Benchers that he is of good recommendations in 1962, legal education is acquired in character.

LAW PRACTICE TODAY In recent years, the legal profession has been criticized from within and even outside the rank of lawyers for (i) the quality service provided; and (ii) running foul of professional ethics by its members. The Nigerian Bar Association had noted with regret that the justice sector is literally in a state of emergency, with too many lawyers ill-equipped to fulfill the professional requirements of clients and the nation. It made proposals to make legal practice more relevant and productive, including the forwarding of Bills to the National Assembly in 2012 for Justice Sector Reform. The Bills are to amend the Legal Practitioners Act, the Legal Education Act; and a third one tagged the Legal Services Bill, proposed to entrench far

Nigerian Legal Education is moulded after the British Legal Education; and stemming from the Unsworth Commission's report and recommendations in 1962, legal education is acquired in two stages â&#x20AC;&#x201C; (i) at the University; and (ii) at the Nigerian Law School. There are now thirty six (36) accredited Law Faculties in Nigeria. Products of these institutions on graduation proceed to the Nigerian Law School for the Bar vocational training programme, which spans a period of twelve calendar months, inclusive of examinations and externship programme. 71 I EsQ legal practice

By Olanrewaju Onadeko DG, Nigerian Law School

reaching changes in line with international best practices on how law should be practiced in Nigeria. A lot of the blame for waning standard has been attributed to the training of lawyers at the two levels earlier mentioned. Needless to say, the Nigerian Law School - being at the apex has always invariably, but unfairly borne the brunt of the criticism. There is a danger in allowing the noted flaws to persist, because it will adversely affect the participation of Nigerian Lawyers in globalised legal services; including crossborder practice. Of note is the General Agreement on Trade in Services (GATS), which has been in force since 1995. The GATS which deals with services, is a multilateral treaty based agreement, inspired by the same objectives as its counterpart in merchandise trade - the General Agreement on Tariffs and Trade (GATT). The main difference between the two being that GATT dealt with trade and merchandise, while GATS relates to services. In essence, countries that ratify GATS would commit them-

www.esqlaw.net

selves to periodic negotiations to progressively eliminate barriers to international trade in services without requiring further approval from other member States. Indeed, Article 19 of the agreement compels members to enter into negotiations of specific commitments, directed to the reduction or elimination of the adverse effects on trade in services of measures as a means of providing effective market access. The agreement is made up of binding rules for trade in all commercial services, with the aim of promoting growth by removing barriers and attracting foreign investment by opening regulated services to international competition. Its benefits have however not gone without critical appraisal, especially in its impact on developing nations. Indeed, the possibility of adverse consequences of globalization has made the need for capacity building for Nigerian Lawyers very compelling. Citing caution, Jumoke Akinjide noted that:

Some progress has been made by the introduction of new and globally relevant subjects of training in the Universities and at the Nigerian Law School. There are still a lot of grounds to cover however. Our pace of breaking-in needs to be quickened. The truth is that, the world is moving fast and we must keep in pace. need to proceed cautiously, bearing in mind the importance of our national interest is imperative. But that should not impede the need to be prepared to ensure that our national Bar is well equipped to compete favourably, if not equally with lawyers from other jurisdictions taking advantage of globalization. Without doubt, the incursion of globalization has made it mandatory that legal training must embrace subjects, that will ensure that our lawyers are trained to be functionally relevant beyond our borders. Capacity building is therefore imperative for those charged with the responsibility of training lawyers at every level.

Some progress has been made by the introduction of new and globally relevant subjects â&#x20AC;&#x153;Foreign Firms bear a low risk of training in the Universities of failure of the liberalization and at the Nigerian Law School. There are still a lot of process. If Nigeria liberalises grounds to cover however. legal services and a foreign Our pace of breaking-in needs law firm, say Olswang, having to be quickened. The truth is opened shop in Nigeria that, the world is moving fast decides for any reason that it and we must keep in pace. no longer wishes to have a Nigerian presence, it can In addition to knowledge in simply disengage local staff, the known specialized fields, a pack up and leave for greener lawyer should know how to pastures. The foreign law function in a globally diverse firms' environment in relationships goals are purely financial. The with clients, regulators and primary question for them is: even lawyers in foreign does it make commercial sense jurisdictions. He must also be a person of high integrity, to have a Nigerian office? since this forms the basis of Providing service to its every interaction. international clients is secondary and dependent on NIGERIAN LAWYERS the first question being ABROAD AND PREanswered in the affirmative. QUALIFICATION LEGAL TRAINING We therefore need to re-align I have already defined a our profession in order to Nigerian lawyer in diaspora as achieve the desired goal of a legal practitioner whose low risk in relation to the survival of the local commer- domicile is outside the shores cial Bar and high reward to be of Nigeria. He is generally well trained competent and earned by re-tooling the efficient. There is the added Nigerian Bar to successfully advantage of being well compete and profit from the positioned to learn about and liberalization processâ&#x20AC;?. experience the workings of novel spheres of law and Even in the terrain of liberal- practice. ization of legal services, the

www.esqlaw.net

In recent years, some home based Nigerian Lawyers have found it expedient to develop themselves, by acquiring expertise in such areas as (i) international finance and commerce, (ii) mining and mineral exploration, (iii) equipment leasing and (iv) privatization via mergers, acquisition etc. This quest for knowledge was in realization that provision of legal services in many areas has acquired international flavour; and it is either you stay in line and keep in pace or stagnate at the rear. Needless to say, even these modest strides would perhaps not have been embarked upon had there not been the drive for global liberalization of legal services. Most of the new skills acquired by those lawyers are not part of the curriculum of training for lawyers in Nigeria, and there are now more voices within the profession calling for their inclusion. It is my view that we need to move in this direction very quickly to bridge the gap; and this is an important area of relevance for our diaspora lawyers. The Council of Legal Education (CLE) is well positioned to serve as link with the thirty six currently accredited Faculties of Law in Nigeria. The British Nigeria Law Forum (BNLF) can partner with the CLE and the Law Faculties to introduce these skills and even advise (in the case of those already offering some of the courses), on the more relevant perspectives to explore. I strongly believe that this will enhance the skills of our lawyers of the future for the world in which they will practice.

level, it is apt to expose them to the essentials of practice where legal services have inexorably acquired international dimensions. They will need to acquire mature skills in addition to learning. Of note is the study of finance, which should give them the knowledge to read, interprete and evaluate financial statements. We should aim at producing lawyers with knowledge to work in a globally diverse environment based on relationships with clients, lawyers from other jurisdictions, regulators and even business executives. Furthermore, lawyers in diaspora, who are academics should be linked to their colleagues in the Universities and the Nigerian Law School. This should create a conducive environment for guidance to students (especially at the Law School), on new areas of law to consider for further studies post qualification. This type of interaction has the added advantage of establishing an on-going mentoring relationship with these students until they are settled into legal practice. In addition, being in contact with academics back home should create an enabling atmosphere for their understanding of prevailing conditions and making suggestions for solutions to the challenges of legal education in Nigeria.

In the use of technology, it is hoped that the interaction will further enhance the competencies that technological advancement offer. The aim should be to enhance proficiency in the use of latest advancements in the digital world, from merely seeing The curriculum at the computers as tools for word Nigerian Law School is loaded processing, to the super for the time frame of study. highway of digitalization. Without delving into the controversy of its adequacy or otherwise, I am convinced that NIGERIAN LAWYERS in addition to what students at ABROAD AND CONTINUING LEGAL the School might have EDUCATION acquired by way of knowlThe Council of Legal edge at the undergraduate EsQ legal practice I 72

Lawyers in diaspora, I believe, are well positioned (going by what obtains in jurisdictions where they practice), to partner with the Council of Legal Education, the NBA and Nigerian Institute of Advanced Legal Studies (NIALS), to structure a functional continuing legal education profile that will benefit the generality of lawyers in Nigeria. In addition, our lawyers in diaspora can assist in enhancing the home-based lawyers' understanding of general legal practice developments in their jurisdictions and viceversa. Education had since inception, been saddled with the responsibility for providing continuing legal education in addition to its primary responsibility of legal education of persons seeking to become members of the legal profession. This function (i.e. continuing legal education) has unfortunately not been met for sometime now, for manifold reasons. The current position is that continuing legal education has been made mandatory since 2007 and Lawyers in diaspora should be partners in this endeavour.

For now it is not clear if the concept of mandatory continuing legal education has been unanimously embraced by all lawyers. It is also correct to state that for the programme to succeed, a lot more needs to be done in securing capable and experienced facilitators; as well as fashioning out relevant seminars covering neglected areas of capacity building such as communication skills and on critical and analytical thinking.

lawyers in Nigeria. In addition, our lawyers in diaspora can assist in enhancing the home-based lawyers' understanding of general legal practice developments in their jurisdictions and vice-versa.

CONCLUSION Nigerian lawyers in diaspora are well positioned to partner with relevant agencies back home in ensuring the enhancement of the quality of training of lawyers, at the prequalification and post qualification levels. Of note are the envisaged benefits of Lawyers in diaspora, I believe, their participation in continuare well positioned (going by ing legal education, where The Nigerian Bar Association what obtains in jurisdictions they can function as co(NBA) has made commendwhere they practice), to facilitators at programmes on able efforts in organizing partner with the Council of emerging areas of law as programmes for its members Legal Education, the NBA and practiced in their jurisdictions under the canopy of continu- Nigerian Institute of of domicile. ing legal education. But there Advanced Legal Studies is still a long way to go in (NIALS), to structure a If they can take up the ensuring a specific structure functional continuing legal challenge and be construcfor the programme on regular education profile that will tively engaged as suggested, basis. benefit the generality of

73 I EsQ legal practice

our continuing legal education back home, should be on the path to the intended, well structured and expanded programme, which will be available to all lawyers wherever they may set up practice in Nigeria. It is my hope that this proposed collaboration will be embraced by the generality of our lawyers abroad. Without doubt, there are glaring challenges that they will encounter in the implementation of this proposal. It is the will to contribute to the development and quality of legal education and practice that should be the propelling force. The profession has come a long way, since the first Nigerian Lawyer was enrolled in 1880 and in this year of the 50th anniversary of the establishment of Nigerian Law School, the only path to tread is that of progress.

www.esqlaw.net

EsQ legal practice I 63

MUTIU GANIYU: GLOBALIZATION AND THE ENFORCEMENT OF FOREIGN JUDGEMENTS IN NIGERIA The legal profession is gradually going global. This then increases the need for a legal framework that enhances the position of Nigeria's legal practice in the global market. Mutiu Ganiyu Smith, Principal Partner of Smithworth Partners discusses how globalisation inï¬&#x201A;uences the Nigerian legal market and the enforcement of foreign judgment in Nigeria.

75 I EsQ legal practice

www.esqlaw.net

Let's focus on Globalisation and the consolidation of today's legal market and Practice; how does this affect Nigeria? Just as globalisation has affected almost every other human activity, its effects on the legal profession in Nigeria cannot but be felt. In stating its effect on the legal market we must recognise the fact that the legal profession has always had its international dimension. This is in the sense that businesses have always operated across borders. For instance, the ship owner in Alang in India whose vessel has been chartered to bring cargo to the port of Lagos, Nigeria may be involved in litigation in the Nigerian court by the receiver of the cargo in Nigeria for any damage to the cargo for instance. What appears to be undisputable is that globalisation has brought about a significant increase in business interactions which, as could have been expected, has in turn engendered an increase in the number of such disputes and the need to engage expert on Nigerian law. This is why increasingly when you read decisions from other jurisdictions, most especially decisions of the English Court, you gather from some of these judgments that evidence has been given on issues of the Nigerian Law in contention in such case. This sort of evidence is usually given by Practitioners, who are barristers and solicitors of the Nigerian Supreme Court. Interestingly, the impact of Globalisation on the legal market has even been felt on non commercial disputes like matrimonial disputes. It seems that more women now select England as their preferred forum for the hearing of their petition for the dissolution of their marriages, most especially where the man is a man of substance. Cases like Otobo v. Otobo and more recently Prest v Prest readily comes to mind. It will also be recalled that the registration and enforcement of judgments obtained abroad in Matrimonial Causes are regulated by a different legal regime namely section 81 of the Matrimonial causes Act, as opposed to foreign judgments in commercial cases which are governed by the provisions of the other Reciprocal Enforcement of Judgment Legislation.

www.esqlaw.net

As for the consolidation of legal practice, there seems to be a lot of strategic alliances amongst practitioners and a handful of mergers of firms in the recent times. This in my view is in response to the ever shifting or changing opportunity structure in the legal market itself. An aspect of our law that seems to be unsettled concerns the enforcement of foreign judgment in Nigeria

i.e the Reciprocal Enforcement of Judgment. Can you please clarify the position? I agree that the law is in a state of flux in this area. The confusion seems to have emanated from the fact that there are two enactments in our statute books on the subject namely; The Reciprocal Enforcement of Judgment Ordinance, Chapter 175 of the Laws of the Federation of Nigeria, 1958; and the Foreign Judgment

(Reciprocal Enforcement) Act Cap, F35 Laws of the Federation of Nigeria 2004.. While Chapter175 of 1958 is applicable only to Judgments which are obtained in a few specified countries, Chapter F35, 2004 (i.e. Chapter 152 1990 Laws) is applicable to virtually all countries to which the Minister of Justice chooses to extend its application. However, Chapter F35 can only come into force when the

EsQ legal practice I 76

basis, other factors such as the conduct of the parties may be taken into consideration by the court. Clients all over the globe are becoming more conscious of the need to control legal costs. For example, Shell recently took the bold step of employing a Queen's Counsel (Q.C.), Mr. Peter Rees, as its Executive Director Legal, to oversee its Legal Division. According to Mr Rees Q.C. himself, one of the positive consequences of this step, for Shell, is that more of Shell's legal work, most especially in terms of legal advice and commercial transactions which Shell would have ordinarily referred to external Solicitors, are now being handled internally.

Clients all over the globe are becoming more conscious of the need to control legal costs. For example, Shell recently took the bold step of employing a Queen's Counsel (Q.C.), Mr. Peter Rees, as its Executive Director Legal, to oversee its Legal Division. Minister of Justice has exercised his power to extend its application to a particular country. Regrettably, he is yet to exercise his power to extend the application of the law to any country up till now. This position of the law was most lucidly explained by the honourable Justice Ayoola when he was on the Court of Appeal bench in the Ayela case which regrettably remains unreported. It appears that the position therefore is that all Judgements which have been obtained outside Nigeria in the countries to which Chapter 175 is not applicable cannot be enforced, except the judgment creditor or the winning party sues on the Judgment The Supreme Court appeared, in some of its judgments, to have applied the provisions of both Chapter F35 (the former Chapter 152) and Chapter 175 interchangeably as if the two enactments are simultaneously in force. This can be seen from cases such as the Macaulay v RBZ Bank case, 77 I EsQ legal practice

and more recently in Vab Petroleum v. Momah. Managing litigation is not just about getting a successful outcome; it is about understanding and managing the needs of your client and the way they want to run their international business. Do costs need to be predictable? Most certainly legal costs need to be predictable. Remember that one of the best business practices is that the business must have a financial plan for every venture. You may want to call it a budget. By your question I understand you to have in mind the overall amount that the client may require to carry through a particular litigation, and not necessarily the costs that are awarded to the victorious party at the end of the litigation. While the former can be predictable, the latter may not be simply because the costs are not awarded on indemnity basis here in Nigeria. Even if costs are awarded on an indemnity

What current dispute resolution trends can you identify in Nigeria most especially in the light of the controversial Bill known as the National Arbitration Regulation Commission Bill which is currently before the National Assembly? The Federal Government of Nigeria seems determined to go ahead with law, even though the law has been rightly and widely condemned. It may interest you to know that without the Bill having become law, the Federal Government of Nigeria is beginning to implement part of the provisions of the Bill, albeit indirectly. This is manifested in the pending litigation between Mr. Candide-Johnson & Others v. Nigerian Port Authority and Others. The case arose in an interesting manner. The Nigerian Port Authority and the Transport and Management Co. Ltd. entered into an agreement for the latter to render cargo tracking services to the former. The Port Authority cancelled the Agreement as a result of which the Company gave a Notice of Arbitration whereby it sought to challenge the cancellation of the contract before the Arbitral Tribunal as agreed by the parties. The arbitration agreement between the parties contains a clause that provides that any disputes between the parties shall be referred to the Regional centre for international Commercial Arbitration.

The procedure specified in the parties agreement is as specified in the Arbitration and Conciliation Act which is contained in the Laws of the Federation of Nigeria. Transport and Port Management appointed Mrs Funmi Roberts as its arbitrator, The Nigerian Ports Authority appointed Mr. Candide-Johnson SAN as its arbitrator. The two Arbitrators jointly appointed Mr. Supo Shasore SAN as the third and presiding arbitrator. After preliminary meetings have been held the Nigerian Ports Authority in writing demanded that Mr. CandideJohnson SAN which it had earlier voluntarily appointed as its arbitrator should withdraw and step down as its Arbitrator as according to the Ports Authority the consent of the AttorneyGeneral of the Federation was not first sought and obtained before the appointment. Apparently, the request was ignored as a result of which the Ports Authority approached the Federal High Court and sought orders for the removal of its own arbitrator. In a curious decision, the Federal High Court acceded to the request by holding essentially that it is only the Regional Center for International Commercial Arbitration that could appoint the arbitrator in the case. Since the matter is now on appeal I won't like to expatiate on why I believe that the decision is wrong except to say that in so far as the parties have appointed their respective arbitrators voluntarily and in so far as the default provisions of the Arbitration Act have not been triggered, the decision has no basis. Where is the new flow of work coming from in the commercial litigation market in Nigeria? This is difficult to say as the relevant statistics are not readily available. All I can say is that going by the records available to me, the various registries of courts, and our own practice in our firm, a lot still comes from the Oil and Gas Sectors as well as the Financial Institutions.

www.esqlaw.net

EsQ legal practice I 69

ARBITRATING IN AFRICA Sub-Saharan Africa is currently among the fastest growing economic regions in the world and provides a rate of return on foreign investment higher than in any other developing region, according to a recent report by McKinsey & Company.

his increased economic momentum continues to create significant business opportunities for both domestic and foreign investors in a wide range of industries in Africa, including telecommunications, energy, infrastructure, financial institutions and mining. Against the backdrop of this myriad of investment opportunities, potential investors must also weigh up the potential risks and challenges. As indicated by the World Bank's Investing Across Borders 2010 report, one of the important factors driving investment decisions by multinational corporations is the strength of legal frameworks for alternative dispute resolution and the extent to which the judiciary supports and facilitates arbitration. In response, governments seeking foreign direct investment are encour-

the enf orce ment of foreig n court judgme nts, which makes the ease of enforcement of arbitration awards one of the key reasons international arbitration is the dispute resolution method of choice for many foreign investors. More than half of the states in Africa are party to THE NEW YORK the New York Convention, CONVENTION including Nigeria, Ghana, ARBITRATING IN AFRICA: The New York Convention Cote d'Ivoire, Kenya, Tanzania ENFORCEMENT REGIMES provides an extensive and South Africa. enforcement regime for FOR ARBITRAL AWARDS An arbitral award will be foreign arbitration awards, Africa is an incredibly diverse made under the New York subject only to a limited continent. The legal systems in Convention if it is made in the number of expressly stipueach country, a product of territory of a state which is a lated exceptions. inherited colonial legal party to the New York There is no real equivalent for systems and more recent Convention. Membership of the New York Convention is therefore of significant An arbitral award will be made under the New York Convention if it is made in importance for investors who the territory of a state which is a party to the New York Convention. Membership may need to conduct arbitraof the New York Convention is therefore of significant importance for investors tion and/or enforce an arbitral who may need to conduct arbitration and/or enforce an arbitral award in African award in African countries countries where, for instance, enforcement is sought against a party that does where, for instance, enforcement is sought against a party not hold assets outside Africa or the investor's African counterparty insists that does not hold assets upon an African seat of arbitration. outside Africa or the investor's

79 I EsQ legal practice

aged to accept the process of international arbitration as an effective means of dispute resolution in order to make their investment climates more attractive and competitive. One of the key components of a strong arbitration regime is the ease of enforcement of foreign arbitral awards. In this Article, we briefly examine the enforcement regimes for arbitral awards across Africa, which broadly fall into three distinct categories. Finally we review the steps taken by certain African governments over the past 12 months to further facilitate arbitration in Africa though the opening and use of dedicated arbitration centres.

Simon Nesbitt & Rashidat Abdulai Hogan Lovells Intâ&#x20AC;&#x2122;l LLP

political developments, vary widely. However, despite these differences, the enforcement regimes for arbitral awards for the majority of countries across Sub-Saharan Africa fall broadly within three categories: 1. States that are party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention). 2. States that are party to the OHADA regime. 3. States that are neither party to the New York Convention nor the OHADA regime.

www.esqlaw.net

EsQ legal practice I 80

Membership of the New York Convention is also good news for domestic parties with counterparties with assets in foreign countries, as it gives African countries reciprocal access to 148 countries across the globe for the recognition and enforcement of domestic arbitral awards.

African counterparty insists upon an African seat of arbitration. Whilst the attitudes of national courts to arbitration and the speed of enforcement varies from country to country, membership of the New York Convention generally provides such investors with an effective and predictable tool to seek recognition and enforcement of arbitral awards in these situations. Membership of the New York Convention is also good news for domestic parties with counterparties with assets in foreign countries, as it gives African countries reciprocal access to 148 countries across the globe for the recognition and enforcement of domestic arbitral awards. 81 I EsQ legal practice

L'ORGANISATION POUR L'HARMONISATION DU DROIT DES AFFAIRES EN AFRIQUE (OHADA) OHADA was created by Treaty in 1993 and seeks to provide a harmonised, secure legal framework for the conduct of business in Africa by operating a uniform law regime which upon adoption becomes automatically applicable in its member states. Arbitration law is one of the areas governed by OHADA. The 17 OHADA member states are Benin, Burkina Faso, Cameroon, Central African Republic, Chad, the Comoros, Congo, CĂ´te d'Ivoire, Equatorial Guinea, Gabon, Guinea Bissau, Guinea, Mali, Niger,

Senegal and Togo. They are predominately of the civil law legal tradition and French speaking. OHADA has a comparatively modern arbitral regime. The recognition and enforcement of awards within all member states is governed by the Uniform Act of Arbitration 1999, which sets out the basic rules applicable to any arbitration where the seat of arbitration is located in an OHADA member state and supersedes the national arbitration laws. The Uniform Act recognises a valid arbitral award as final and binding on the parties and provides a mechanism for the enforcement of arbitral awards subject only to one ground for refusal of enforcement

(namely, that the award is manifestly contrary to the international public order of the OHADA member states). However, critically, the application of the Uniform Act as regards enforcement is limited to awards made in and sought to be enforced in OHADA member states. It is worth noting that 10 of the 17 OHADA member states are also parties to the New York Convention, including Cameroon, Gabon, CĂ´te d'Ivoire and Senegal. Accordingly, in these countries, the requirements set out under article 5 of the New York Convention will apply for the recognition and enforcement of foreign, nonOHADA awards. However, for the majority of

www.esqlaw.net

A few African countries have recently informally indicated an intention to become signatories to the New York Convention in the near future, including Angola and the Democratic Republic of Congo, perhaps as a result of the significant foreign direct investment inflows to these countries and a desire to signal their commitment to improving the transparency and predictability of their legal environments. including requirements such as reciprocity of enforcement by the award-holder's home state and with wider scope for refusal of recognition. Foreign investors will therefore need to invest more resources in investigating the position in these countries, and issues such as the judicial attitudes to arbitration become more significant. A few African countries have recently informally indicated an intention to become signatories to the New York Convention in the near future, including Angola and the Democratic Republic of Congo, perhaps as a result of the significant foreign direct investment inflows to these countries and a desire to signal their commitment to improving the transparency and predictability of their legal environments.

OHADA member states that are not party to the New York Convention, the territorial limitations of the OHADA enforcement regime for arbitral awards may impact upon the attractiveness of their investment climate for foreign investment. NON-CONVENTION COUNTRIES In countries which are neither party to the New York Convention nor an OHADA member state, foreign investors seeking to enforce a foreign award must rely on the enforcement provisions of national arbitration laws, which, by and large, tend to be more onerous than the enforcement regime under the New York Convention, often

www.esqlaw.net

ARBITRATING IN AFRICA: OPEN FOR BUSINESS Hand in hand with the need for stronger and more predictable enforcement regimes for arbitral awards in Africa, is the need for more arbitration hearings to be held on the continent. The regular application and testing of arbitration laws will develop the arbitration experience of domestic courts and increase public awareness of arbitration in commercial matters, which in turn may alleviate current challenges such as the time it takes to enforce arbitral awards in certain countries. Over the past year there have been a number of new arbitration centres springing up in countries across the continent in efforts to strengthen the legitimacy of international arbitration in Africa. In the continuing spirit of improving its legal system and attracting investors, Rwanda launched its own arbitration centre, the Kigali Centre for International Arbitration (KIAC), on 31 May 2012. The KIAC was the first dedicated centre for the administration

of international arbitration in the East Africa Community (comprising Burundi, Kenya, Tanzania, Rwanda and Uganda) with the ambition of serving not only the business and investment community of Rwanda, but of the entire region, including the Common Market of Eastern and Southern Africa (comprising twenty countries stretching from Libya to Zimbabwe). There has been a recent addition to the number of arbitration institutions in Nigeria, with the launch of the Lagos Court of Arbitration (LCA) on 9 November 2012. The LCA was established by the Lagos State government under the Lagos Court of Arbitration Law of 2009, in recognition of the magnitude of commercial activity in Lagos and to promote the resolution of disputes by arbitration and other alternative dispute resolution mechanisms in Lagos State. The official launch of the much heralded LCIA-MIAC Arbitration Centre in Mauritius took place on 9 December 2012. The first of its kind in Africa, the LCIAMIAC is the product of a union between the LCIA, one of the longest-established arbitral institutions in the world, the Mauritius International Arbitration Centre (MIAC) and the government of Mauritius. With similarities to the LCIADIFC model adopted in Dubai, the LCIA-MIAC is able to offers its users all the services offered by the LCIA in the UK, drawing on the extensive experience, expertise and support of the LCIA in the efficient and cost effective administration of arbitration and other ADR procedures. Not far behind, in January 2013 the president of Kenya approved and brought into law the Nairobi Centre for Arbitration Act 2012 which provides for the creation of an alternative dispute resolution centre in Nairobi for the administration of both domestic and international

arbitration. After Rwanda's KIAC, Kenya's arbitration centre will be the one of only two international arbitration centres in the East African Community. Finally, at the First International Conference on Arbitration in December 2012, organised by the Bar Association of Angola and held in Luanda, the Minister of Justice and Human Rights of Angola announced plans to set up a number of experimental arbitration centres in the country in 2013. Although further details have yet to be provided, it is intended that the new arbitration centres will handle both commercial and consumer disputes. These developments are an encouraging indication of the efforts being made to promote the use of arbitration across Africa and to provide opportunities to resolve commercial disputes locally, potentially saving parties time and costs. If successful, such initiatives should lead to the development of arbitral jurisprudence and expertise within these countries, for the benefit of foreign and domestic parties alike.

EsQ legal practice I 82

83 I EsQ legal practice

www.esqlaw.net

84 I EsQ legal practice