Arbitration is alternative to our slow judicial system – Bayo Ojo

Why did you choose to set up the centre for arbitration, is it because the formal judicial system is slow? I chose to set up the International Centre for Arbitration and Mediation Abuja otherwise called ICAMA because first and foremost arbitration is my life and secondly there was a yearning gap for that kind of […]

Why did you choose to set up the centre for arbitration, is it because the formal judicial system is slow?

I chose to set up the International Centre for Arbitration and Mediation Abuja otherwise called ICAMA because first and foremost arbitration is my life and secondly there was a yearning gap for that kind of facility. This is the first time such a private initiative is taking place in this country. Furthermore, we are asking investors to come to our country and invest, but if we do not create the enabling environment for them to do so, they will not come. Nigerians also have to invest in their own country first before foreigners will be attracted to come. If you set up a school and your own children do not attend the school but go elsewhere, how would other peoples’ children come to the school? They would assume something is wrong somewhere. So for now, let us stop shouting ourselves hoarse in inviting investors to our country. If we ourselves believe in our country and invest in our country and the climate is right, investors will be attracted to come on their own. On the judicial system being slow, one must acknowledge that fact. It is said that the wheel of justice grinds slowly but surely. But we cannot afford that luxury in business or commercial transactions where time is of the essence in all you do. Hence to some extent, yes it is also because the judicial system is slow because of its peculiar challenges. Hence arbitration and mediation is a viable alternative.

Does the Nigerian legal system support arbitration?

The Nigerian legal system supports arbitration. That is why there is in place the Arbitration and Conciliation Act 1988 which is derived from the UNCITRAL Model Law of the United Nations. It is however due for revision now and the draft bill has been lying in the National Assembly since 2006. I want to use this medium to appeal to our brothers in the Assembly to pass the said bill in time as its passage will give an added impetus to attracting foreign investments to our country.

Do you see this project being a success?

Yes, I see the project being a success, as just a day after the Hon Chief Judge of the FCT High Court, Hon Justice Lawal H. Gummi, formally declared it open, we had a two day training programme for 60 participants organised by the Chartered Institute of Arbitrators (UK) Nigeria Branch which leads to the Associate Membership level. Right now, we have been receiving bookings from arbitrators and lawyers involved in one arbitration or the other who want to use our facilities for their hearings. Of course, the Centre is also available for board meetings and use as office for businessmen who come from outside Abuja for meetings and need a quiet private place with first class facilities to conduct their meetings.

It appears that arbitration is an elitist concept, do you think that majority of Nigerians understand it?

The fact that a lot of people might not understand the concept does not make arbitration elitist. The only thing I would say in this regard is that yes it is new, but it is catching on fast. There is a groundswell of awareness going on now about arbitration and mediation. Also do not forget that customary arbitration has been with us in the villages from time immemorial when the elders used to settle disputes by arbitrating and sometimes mediating between warring parties. So the concept itself is not elitist. It has been with us a long time ago. It’s the dimension that is now different because it has now moved from settling petty quarrels to settling huge commercial disputes sometimes running into billions of naira.

How can the practice be made more popular and acceptable in our society?

The practice can be made more popular through awareness activities by the stakeholders involved in it. Just like the Entry Course, I told you, was conducted by the Chartered Institute of Arbitrators (UK) Nigeria Branch. Also it can be made popular through seminars and workshops on arbitration and mediation.

What kind of matters are subject to arbitration?

Practically all matters can be subject to arbitration. In the past, matters like land and family were excluded but that is changing now. However, the bulk of the matters that are arbitrated or mediated upon are commercial or business disputes.

Do we have the expertise in Nigeria to arbitrate?

Yes, we do. We have a lot of notable arbitrators and mediators in Nigeria now who can hold their own anywhere anytime, even internationally. The important thing however is to ensure that arbitrators possess the requisite training and experience to undertake the work.

Do we have the facility to train more lawyers on arbitration?

Let me first make a clarification that arbitration is not for lawyers alone. Anybody can be an arbitrator provided he or she has acquired the right skill and experience through training. We have notable arbitrators and mediators who are not lawyers but are architects, quantity surveyors, engineers etc. Even you as a journalist can be an arbitrator and mediator provided you acquire the training.

What is the mode of enforcement of arbitration decisions especially if one of the parties starts vacillating?

The mode of enforcement of an award from arbitral proceedings is to register the award (judgment in regular courts) with the court and use the paraphernalia of the regular court to enforce it by way of levying execution. The issue of a party vacillating in an arbitral proceeding does not arise as an award can be given behind your back if you refuse to show up and there is a binding arbitration agreement. This is called ex parte proceedings and default award.

We know how lawyers create deliberate bottlenecks in courts when matters are not going their way. Do you encounter such in arbitration and mediation? If yes, how do you handle it in order for the process not to end up like the regular courts it is trying to salvage?

I agree that some of our colleagues create deliberate delays in proceedings when they know they have no case or their case is manifestly weak. This gives the profession a bad image in the eyes of the public who can discern what goes on. This is preventable in arbitral proceedings as the bureaucracy that goes with court proceedings are absent. For example, Section 1(4 a) of the Evidence Act makes the provisions of the Act inapplicable to arbitral proceedings. This means that strict rules of evidence are not applicable even though you are still guided by its provisions. So taking an objection that a document not coming from proper custody or not laying proper foundation for the tendering of a document is a pure waste of valuable time. The document will be admitted if it is relevant to the proceedings. It is the weight that is to be attached to it that matters.

Do you share the view that the rate at which perpetual injunctions are given by our courts stops law enforcement agencies from carrying out their duties effectively?

I do not agree with this as it depends on the context from which this is viewed against. Each case should be viewed on its own merit.