Increasing Complexity of Commercial Disputes: Judicial Specialisation as a Solution Tunde Fagbohunlu...

Increasing Complexity of Commercial Disputes: Judicial Specialisation as a

Solution

Tunde Fagbohunlu

Aluko & Oyebode

Perspective

What business interests require of the judicial system: efficient and effective resolution of commercial disputes

Judicial specialisation desirable

But ineffective without holistic reform

Anecdotal evidence

Attributes of the Specialist Judge

Comprehensive knowledge of legal rules Good knowledge of practices/customs in

relevant sector (e.g. UCP 500, INCOTERMS) Clear understanding of underlying policies Excellent case management skills

Efficiency and Efficacy: Three Critical Points

Protection

Resolution

Enforcement

Protection

Preservative Orders, Injunctions, Anton Piller Orders, Ship Arrests etc

Skills requirements:- Balancing rights/interests- Fashioning “win/win” solutions

Challenge: Judicial independence: - the “chilling” effect of regulatory sanctions- the “put them on notice” syndrome

Resolution

Efficiency in dispute resolution: expeditious and just determination of merits

Relevance of specialist judicial skills: case management skills, sound knowledge of law, usage and policy.

Challenges:- “Derailment Tactics”- Unhelpful appellate process

Enforcement

Case study: enforcement of international arbitral awards- The “result-oriented” approach in the England & Wales Commercial Court – underlying policy

- Comparison with Nigerian timescalesCase A: 2 ½ Years Case B: 1 Year 6 months