ESQ LEGAL PRACTICE MAGAZINE JUNE 2014 EDITION

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Dr.AdesegunAkin-OlugbadeOON,ExecutiveDirector/GeneralCounsel,AfricanFinanceCorporation,MrOreOlajide,

Legal Adviser, Nigerian Bottling Company Limited,Mrs Olatowun Candide-Johnson, General Counsel/Company

SecretaryofTotalUpstreamCompaniesinNigeria;MrDapoOtunla,GeneralCounsel,NotoreChemicalsandIndustries

Ltd.,MrsNgoziOkoronkwo,ChiefLegalOfficer,OANDO,MsTinuadeAwe,HeadofLegalandRegulatoryDivision,

NigerianStockExchange,NankundaKatangaza,HeadofInternationalPolicy,LawSocietyofEnglandandWales,Mrs

ToyinSanni,MD/CEOofUBACapitalandChairpersonoftheCapitalMarketOperators,MrsNikeLaoye,ChiefLegal

Counsel,atEcoBankPlcandwinneroftheLegalTeam(FinancialServices)atthemaideneditionProf(Mrs)Yinka

Omorogbe,Former General Counsel of NNPC,MrDayoOkusami,GroupGeneral Counsel, Atlantic EnergyDrilling

ConceptNigeriaLimited,Mrs.HelenAnatogu,CorporateAttorney/LegalManager,AnglophoneWestAfrica&Angola,

MicrosoftCorporation,Mrs.ChiomaMadubuko,GeneralCounsel,Dangote,Dr.MarkIghiehon,GeneralCounsel,Shell

UK,MsNikeOlafimihan,GeneralCounsel/CompanySecretary,ShellE&P,Nigeria,MsRotimiOghenerume,General

Manager,CommercialLegal,MTN,MrsKemiShaba,LegalManager,Multichoice,Nigeria,MrBabatundeAkinyanju,

Chairman, British Nigerian Law Forum, UK,MsRemi Aiyela,Publisher, NOG Intelligence,Mr. NedMojuetan,Mrs

AbimbolaIzu,LegalAdviser/CompanySecretary,SkyeBankPlc,MrsMirianKachikwu,GeneralCounsel,(WestAfrica)

ABBGroup,Dr.JumokeOduwole,LegalConsultantandLecturer,CommercialLaw,UniversityofLagos,Mrs.Ibirobo

Adekola,DirectorofLegalServices,AirtelNigeria,Mrs.FolaAkande,CompanySecretary/ChiefCounsel(WestAfrica),

Cadbury Nig. Plc,Mr Adeyemi Johnson, CEO Open Spaces Compliance, UK,Mr. Osilama M. Otu, Company

Secretary/LegalAdviser,ZenithBankPlc,Ms.IbiyemiSolanke,LegalCounsel,OrangeUK.

NIGERIAN ESQ LEGAL AWARDS

2014

...celebrating excellence in the Nigerian Legal profession

September 18th 2014Lagos, Nigeria.

the judges

PracticeBasedAward

Section:Deals

Banking&FinanceTeamoftheYear,CapitalMarketTeamoftheYear,

Mergers&AcquisitionTeamoftheYear,InsolvencyandRestructuringTeamoftheYear,IntellectualPropertyTeamoftheYear,PrivateEquityTeamoftheYear,DisputeResolutionTeamoftheYear,Energy/OilandGasTeamoftheYear,RealEstateTeamoftheYear,CorporateTeamoftheYear,TelecommunicationTeamoftheYear

Section:PublicSector

AttorneyGeneraloftheYear

Section:General

CSRLawFirmoftheYear,PracticeManageroftheYear,AwardforAcademicContribution,GenderFriendlyLawFirm,LawWriteroftheYear(Journalists),DevelopmentofTalent,YoungLawyeroftheYear

Section:LawFirms

InternationalFirmoftheYear,OffshoreFirmoftheYear,CrossBorderTransactionoftheYear,National/RegionalLawFirmoftheYear,LawFirmoftheYear

AWARD CATEGORIES

·Entries/Nominations&[email protected]

·EventEnquiries&TableBookings

[email protected]

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seunabimbola

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.

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 LawPractices. 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.

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 accom-plished 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.

bomaozobia

abimbolaojenike

Sola Adepetun is the Managing Partner of Adepetun, Caxton-Martins, 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.

Publisher/Editor-in-Chief

Business Director

Advisory Board

Editorial Consultant

IT

Graphics

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Advert & Subscription Enquiries

Website

Lere Fashola

Funmi Ekibolaji

Olurotimi Akeredolu SANGbenga Oyebode MFR

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Seun Abimbola

ESQ Studios

08035269055

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Comments, advice and other enquiries to

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Joel Ibiyemi

Legal Adviser

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Akinkurolere Oluwaseun

Date: 29th-30th July, and 31st July-1st August, 2014 respectively

Negotiation and Documentation of

Power Contracts & Power Project Financing School

s globalization of legal services Areinforce the need for stand-ardisation of practices and systems, the

legal profession in Nigeria continues to witness greater changes and innovative achievements far higher than

many other sectors in the economy. There is therefore the need to celebrate the unique contributions that lawyers

make to the growth of businesses in Nigeria. To this end, ESQ Legal Practice Magazine, the number one legal practice magazine in sub Saharan Africa has reorganised its Legal Awards to a higher standard by restructuring its judging process and criteria for the various categories of awards.

Following the various feedbacks from the last award in 2010 and in order to shore up the credibility of this first and highly reputable legal industry award, we have carefully selected a panel of judges made up of respectable general counsel and notable business personali-ties with records of integrity and professionalism. This panel is chaired by Dr Adesegun Akin-Olugbade, Executive

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 Chairperson of the Capital Market Operators, Mrs Nike Laoye, Chief Legal Officer at Eco Bank Plc and Head of the Legal Team (Financial Services) at the maiden edition, Mrs Olatowun Candide-Johnson, General Counsel, Total Upstream Companies in Nigeria, Ms Nike Olafimihan, General Counsel, Shell E&P Nigeria, Dr Mark Ighiehon, General Counsel Shell UK, Mrs Mirian Kene Kachikwu, General Counsel ABB Group (West and Central Africa) Mrs Helen Anatogu, Corporate Attorney, West and Central Africa, Microsoft Inc., Mrs Fola Akande, Chief Legal Counsel, (West Africa) Cadbury Nigeria Plc., Mr Dapo Otunla, General Counsel NOTORE, Prof Mrs Yinka Omorogbe, Former General Counsel of NNPC, Mr Michael Otu, General Counsel, Zenith Bank Plc., Mr Ore Olajide, Head of Legal, Coca Cola (Nigeria), Mrs Ngozi Okonkwo, Chief Legal Officer, OANDO, Mrs Tinuade 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 commu-nity 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

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 pre-eminence 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 opportu-nity.

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).

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editorial

Es legal practice I 09Q

ESQLEGALPRACTICEMAGAZINERESTRUCTURESITSLEGALAWARDS,APPOINTSTOPGENERALCOUNSELSASJUDGES

thn 8 July, 2014, the OLaw 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.

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

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.”

Exploring these opportunities

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

LAWSOCIETYHOLDSINTERNATIONALMARKETPLACECONFERENCE

he 2014 edition of the TABA 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

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.

ABAINTERNATIONAL2014FALLMEETING

10 I Es legal practiceQ www.esqlaw.net

he worth of a man's life Tis 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

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.

PROFILEJustice 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

TRIBUTETOTRIBUTETOJUSTICEOPUTA:JUSTICEOPUTA:WHENJUSTICEWHENJUSTICEGOESTOSLEEPGOESTOSLEEP

TRIBUTETOJUSTICEOPUTA:WHENJUSTICEGOESTOSLEEP


Lere FasholaPublisher, ESQ Magazine

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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

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.”

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

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 “learned” in the

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

www.esqlaw.net Es legal practice I 13Q

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

but the party who wants proof of the obvious, or proof of what should have admitted, must be prepared to pay for such proof.”This dictum is in consonance with the memorable words of Crampton J. in R. v. O'Connell (1844) 7 lr. L.R. 261: where he laid down the forensic duty of the advocate and stated, “This court in which we sit is a temple of Justice; and the advocates at the Bar, as well as the Judge upon the Bench, are equally ministers in that temple. The object of all equally should be the attainment of Justice… slow and laborious and perplexed and doubtful in its issue that pursuit often proves; but we are all judges, Jurous, advocates and Attorneys –together concerned in this search for truth: The pursuit is a noble one, and those are honoured who are then instruments engaged in it”. This same sentiment has always been expressed by many other forthright judges against counsels' attitude aimed at frustrating the cause of justice. In KAYCEE (NIGERIA) LIMITED VS PROMPT SHIPPING CORPORATION LIMITED Owolabi Kolawole JCA as he then was said. “I agree one reason why trials are unduly prolonged in many of the high courts are the attitude of counsel who settle pleadings. There are certain material facts which ought to be admitted by counsel for the defendant but which learned counsel would deny. Evidence which need not be called is then called; time wasted; cost is increased and justice delayed… In the second century of the legal profession in Nigeria, I believe that the legal profession ought to turn a new leaf. When matters are admitted, the plain fact is not that the claim is admitted; upon the admitted facts the real points of law which in counsel's opinion are of such weight should be canvassed. Costs would be saved, time would be saved, patience would not be exhausted and justice would be done according to Law”. On the Attitude of Supreme Court to its previous judgments, (F.C.S.C. v. Laoye (1989) 2 NWLR (Pt.106) 652)"This Court does not show any antipathy towards any

submission that its previous decision or decisions were wrong and should be over-ruled. In fact, the Court welcomes any opportunity to review any decisions given per incuriam.' It is far better to admit an established mistake or and correct same rather than persevere in error. Justices of the Supreme Court are human-beings capable of erring. It will be short-sighted arrogance not to accept this obvious truth." PER OPUTA J.S.C. (Pp. 86-87, Paras. G-A)

On the finality of the decisions of the Apex court, Oputa said in Adegoke Motors v Adesanya (1983) 3 NWLR (Pt 109) 250 @ 274-275, that: 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 inestimable good through its wise decisions. Similarly, the 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 incuriam, such counsel should have the boldness and courage to ask that such a decision be over-ruled. 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.

In the locus classicus of Garba v University of Maiduguri which deals with the issue of Right to fair hearing, Oputa said: “God has given you two ears. Hear both sides”Also in Otapo V Sunmonu (1987) 2 NWLR Part 58 at Page 587 he stated as follows“A hearing that is tantamount to a travesty of justice cannot by any stretch of imagination be described to be fair, for justice herself is fair and even handed. The Almighty God gave us both ears so that we hear both sides. To hear one side of a dispute and refuse to hear the other is a flagrant violation of the principles of eternal justice”.The Psalmist said, “Seventy years is all we have. Eighty 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.

www.esqlaw.net Es legal practice I 14Q

uilding a hotel in BEthiopia. Writing contracts between African governments and petroleum

producers. Bringing together public and private money to build sewers and roads.

Opportunities for U.S. law firms to consult on projects in African nations are growing, and companies here and abroad are increasingly turning to law firms to help do deals, navigate regulations and develop infrastructure projects, say leaders of the new Africa practice group at Williams Mullen.

In his first year, Ken Asbury has made the largest acquisition in the contractor's history.

The Richmond-based law firm, a top 200 U.S. firm with about 250 attorneys, is one of a handful of major U.S. law firms that have recently created practice groups specifically to chase business in Africa, which they see as the new frontier for U.S. companies to expand and invest because of a growing middle class there. Covington & Burling, the District's largest law firm, last fall hired Witney Schneidman, a former adviser on African policy to President 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.

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,

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.

The Obama administration last month announced an initiative, Power Africa, aimed at expanding access to electricity to 20 million new households in Ethiopia, Ghana, Kenya, Liberia, Nigeria and Tanzania. The initiative will be funded largely by government-backed lenders, but opens the door for law firms — which advise on virtually every part of new infrastructure projects — to pick up new business.

“Energy is the biggest ticket item that connects all of Africa,” said Richardson, who spent a year advising the Kenyan government on infrastructure finance during a year-long sabbatical funded by the Treasury Department. “There is a lot of diversity across Africa, but the one thing they have in common is they're short on energy.”

Kearney, who leads the Africa group at Greenberg Traurig,

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 substantial commercial activity, particularly in certain industries, have at least begun to consider Africa as a region of activity,” Kearney said. “If you're a firm with clients that are internationally active, you'd have to be almost willfully ignoring Africa not to focus on it. The time is now.”

Oil and gas, mining and infrastructure “are all very busy sectors because that level of development is necessary for Africa to reach its full potential,” Kearney said. “So law firms and other service providers who are focused on those sectors, or who have clients focused on those sectors, are rightfully interested in what's going on in Africa. There is probably more activity in Africa in some of those sectors than any other place in the world right now.”

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 lawyer of the U.S. Agency for International Development and helped author the law that created the African Development Foundation, a government program that offers grants to groups that help create jobs and raise income levels in Africa. Richardson, a former diplomat, represents developers that build transportation and other infrastructure systems. Suarez specializes in import and export laws, an area of increasing importance as trade and investment between African nations and the rest of the world are poised to grow.

“The continent is becoming a fast-growing economy with a middle class and tons of opportunities for the U.S. and Africa with trade, government relations and infrastructure projects,” McAllister said.

Several African countries — including Sierra Leone, Niger, Ivory Coast, Liberia and Ethio-pia — are among the fastest-growing in the world,

www.esqlaw.net

D.C.LAWFIRMSLOOKTOAFRICAFORNEWBUSINESS

Es legal practice I 15Q

www.esqlaw.net16 I Es legal practiceQ

etween 20th and 21st BOctober, 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 Presidents and countries at the 2014 Summit already planned to attend include:

His Excellency John Dramani, President Republic of Ghana

∙ His Excellency Yoweri Kaguta Museveni, President Republic of Uganda

∙ His Excellency Jakaya Kikwete, President United Republic of Tanzania

∙ His Excellency Paul Kagame, President of the Republic of Rwanda

The event which has the full backing of the Organisation for Economic Development, The United Nations Economic Commission for Africa, NEPAD and the United Stated Energy Association and is supported by the Law Society.

THEGLOBALAFRICANINVESTMENTSUMMIT

he Law Society of TEngland 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.

Alongside the rapid economic growth experienced in many African jurisdictions over the past decade has been the parallel exponential growth of

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

According to the organisers, participation in this delegation will raise law firm's profile, develop far-reaching international business opportunities across Africa, Europe and beyond enabling lawyers to explore the many opportunities for law firms in the world's leading international legal hub,

London.

The programme will include:

∙ Attendance at the Law Society's annual International Marketplace 2014

∙ Industry leaders roundtable

∙ Networking reception specifically targeted at firms and clients relevant to your business

∙ Participation and speaking opportunities

∙ Firm profile in a mission brochure

∙ Support of a Law Society market visit coordinator

PANAFRICAMARKETLEGALLONDONVISITTO


MOROCCOSELLS1BILLIONEUROBONDASBORROWINGCOSTSFALL

orocco sold its Mfirst euro-

denominated

bonds in four

years after

yields fell to all-time lows and

stimulus measures in Europe

help boost demand for riskier

assets.

The government issued 1

billion euros ($1.4 billion) of

10-year bonds at 215 basis

points above midswaps, the

country's Economy and

Finance Minister Mohamed

Boussaid said in an interview

yesterday. The yield on

Morocco's October 2020 debt

has dropped 124 basis points

year to 3.06 percent, within

five basis points of record low

on May 30.

The North African country

joins Emirates

Telecommunications Corp.

and Turkiye Vakiflar Bankasi

in tapping international

markets after the European

Central Bank cut interest rates

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 e-

mail. “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.”

BNP Paribas SA,

Commerzbank AG and

Natixis managed the

Moroccan debt deal, the first

in euro-denominated bonds

since the nation sold 1 billion

euros of fixed-income

securities in September 2010,

according to data compiled by

Bloomberg.

Slowing Growth

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.

The $105-billion economy

added 4.8 percent in 2013 after

a better cereals harvest than

this year's. The government

budgeted a 4.2 percent

expansion in gross domestic

product for 2014. On May 16,

Budget Minister Driss El

Azami El Idrissi said GDP

growth would be about 4

percent.

The government plans to axe

subsidies on widely-used

diesel fuel as of 2015 while

keeping them for cooking gas,

sugar and wheat flour,

Boussaid said.

The government has taken the

boldest steps to date among

peers in the region in

dismantling subsidies as it

sought to fix public finances

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

5.5 percent in 2013. He said

the deficit is forecast to fall to

3 percent by 2017. Morocco is

a net oil and gas importer and

its 2014 budget was based on

an oil price of $105 a barrel.

Besides the 1 billion euros it

raised from yesterday's bond

sale, Rabat expects the 1.5

billion euros in outstanding

external financing needs for

2014 to come from

international financial

organizations including the

World Bank, the Arab

Monetary Fund, the European

Investment Bank and the

Islamic Development Bank,

Boussaid said.

n a welcome addition to Ithe recent suite of pro-

arbitration 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

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 pre-

BALCO era, limits the

circumstances when the

Indian courts can intervene in

the context of foreign seated

arbitrations.

Background

Two production sharing

contracts were entered into by:

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.

The contracts were governed

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


INDIANSUPREMECOURTGIVESFURTHERREASSURANCEONTHELIMITSOFITSJURISDICTIONINCASESOFARBITRATIONSEATEDOUTSIDEINDIA

Section 34 of the Indian

Arbitration Act 1996 (the Act).

See our previous post here.

Law governing Pre-BALCO

Agreements

The arbitration agreement that

was considered in the present

case was executed prior to the

Supreme Court's landmark

decision in BALCO i.e. prior to

6 September 2012. (We have

considered this dual approach

to pre- and post-BALCO

contracts in our earlier blog

post here). In summary, the

ruling of the Supreme Court in

BALCO – which held that

Indian courts do not have

supervisory jurisdiction over

foreign seated arbitrations –

does not apply to arbitration

agreements executed prior to 6

September 2012. The position

in respect of such agreements

is that Indian courts may

exercise supervisory

jurisdiction over all

arbitrations including foreign

seated arbitrations with a

nexus to India unless:

Parties had expressly

chosen not to vest the

court with such

supervisory jurisdiction

(usually by clarifying that

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

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.

The Supreme Court also

rejected the Delhi High

Court's suggestion that

different courts may have

supervisory jurisdiction

depending on the stage at

which the supervisory courts

were approached. The court

held that applicability of Part I

of the Act is not dependent on

the nature of challenge to the

award. The Supreme Court

found that the High Court had

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

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 pre-

BALCO agreements. In this

regard, it follows a more

general pro-international

arbitration trend from the

Indian courts, to which the

High Court's decision was an

exception. For investors with

arbitration agreements that

were entered into before 6

September 2012 and to which,

therefore, the BALCO decision

does not apply, the Supreme

Court's decision will surely be

a welcome one.

interpreted in accordance with

the laws of India and could

not be performed in a manner

which would contravene the

laws of India. Union of India

argued that, therefore, Indian

law (including Part I of the Act

– which provides Indian

courts supervisory jurisdiction

over arbitrations) could not

have been excluded by the

parties. Since Part I of the Act

includes the Indian courts'

power to set aside arbitral

awards, Union of India argued

that the Delhi High Court had

jurisdiction to set aside the

Partial Final Award issued by

the tribunal seated in London.

Reliance argued that by

choosing English law to

govern their arbitration

agreement and expressly

agreeing that London was to

be the seat of arbitration, the

parties had excluded the

application of Part I of the Act.

The Delhi High Court upheld

the contention of Union of

India and held that there was

no express or implied

exclusion of Part I of the Act. It

held that an award which is

said to be against public

policy can be challenged in

India even though the seat of

arbitration is outside India.

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


ork-in-the-road Fprovisions 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-in-

the-road provision would

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

EGYPTPREVAILSONFORK-IN-THE-ROADPROVISION

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 “fork-in-the-road” provision contained in the US-Egypt bilateral investment treaty (the BIT).

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

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 fork-

in-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.”

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-in-

the-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



his injunction was Tgranted on an ex-

parte 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)).

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

On 23 April 2014, the Tanzanian High Court ordered both parties in on-going 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.

TANZANIANCOURTSINJUNCTICSIDPROCEEDINGS


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

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.


oremost arbitration centre in FAfrica, 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

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.

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

ICAMACHARTSFUTUREFORARBITRATIONINAFRICA

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.


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.

Doyens of arbitration in

Nigeria like former Lagos

State Attorney-General and

Commissioner for Justice, Mrs

Hairat Balogun SAN, former

Attorney-General of the

Federation and Minister of

Justice, Alhaji Ibrahim

Abdullahi (SAN) were on

with the effect, being to inhibit

application of the generic law

of civil procedure code to

arbitration cases.

He concluded by saying, “I

have drawn on experiences

within Africa to show the

wealth of material of the

diverse approaches to court

intervention. I hope you agree

with me that the overall thrust

of all these initiatives is to put

arbitration on the centre stage

and most beneficial for the

users.

In a paper delivered by Prof.

Khawar Qureshi QC, from

United Kingdom, he noted

that “the English courts have

refused to take an “all or

nothing” approach to the

enforcement of awards, and

will allow for recognition and

enforcement of all or part of

an award. The rationale for

this is given on the grounds

that the alternative would be

inconsistent with the purpose

of the Convention and a

barrier to the effective and

speedy enforcement of

arbitration awards, for

example, if a small part of a

large award was challenged,

with the effect that the

application of the entire award

was suspended (see National

Nigerian Petroleum Corporation

v IPCO (Nigeria) Ltd [2008]

EWCA Civ 1157).”

Speaking on the American

experience, he stated that “The

US Supreme Court has also

noted the pro-enforcement

nature of the New York

Convention. In Scherk v.

Alberto-Culver Co., 417 U.S.

506, 520 n. 15 (1974), the

Supreme Court held “the goal

of the [New York] Convention,

and the principal purpose

underlying American

adoption and implementation

of it, was to encourage the

recognition and enforcement

ground to deploy their wealth

of experience in tackling

posers raised by the

participants.

An arbitration expert, Jimmy

Muyanja speaking from

Uganda perspective, noted

that Ghana and Kenya had

gone a step further by

including customary law

under the purview of

arbitration, with Ghana

having an impressive 25

sections in the Part III of the

Act, while Kenya on the other

hand, entrenched applicability

of arbitration by recognising it

as constitutional right.

On the usual collision of

legislation in the application

of arbitration, he informed

that African countries are

applying different solutions,

with Uganda and Kenya

opting to enact specific

subsidiary legislation

addressing court procedure,

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

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.”

Speaking on the final stage of

award, she submitted that

“Before signing any award,

the arbitral tribunal shall

submit it in draft form to the

Court. The Court may lay

down modifications as to the

form of the award and,

without affecting the arbitral

tribunal's liberty of decision,

may also draw its attention to

points of substance. No award

shall be rendered by the

arbitral tribunal until it has

been approved by the Court as

to its form.”

Sami Houerbi, from Tunisia

and Director, Eastern

Mediterranean, Middle-East

and Africa, international

Court of Arbitration asked

Africa and Asia to make their

continents attractive as

favoured places of arbitration,

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.

e.g. Recreational, conference,

telecom, etc,

Regional/National institutions

and professional groups with

primary focus to train,

disseminate information and

knowledge of arbitration law

and practice, security/political

stability, Infrastructure, strong

and supportive judiciary and

high ethical standards of

conduct of all participants,

arbitrators, counsel, parties/

respect for the process.”

He pointed out that the forum

of choice in the Middle East is

Dubai due to easy

connectivity, being a leading

aviation hub with ease of visa

procurement, while Singapore

is forum of choice in Asia.

The conference was not all

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.


stn 9 May 2014, Burundi was the 151 Ocountry 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 nd32 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.

Africa is opening up to international arbitration

standards

Arbitration is becoming an essential instrument

to foster economic development in African

countries, which now have in majority

legislation statutes on domestic and

international arbitration. However, significant

differences remain between these countries in

their approach to the resolution of

international commercial disputes.

Inequalities show that some arbitration

regimes are outdated and therefore not

adapted to keep up with modern practices.

However, a movement of modernization is

also perceptible in other African countries:

In some jurisdictions, such as Namibia and

South Africa, national court judges tend to

issue arbitration-friendly judgments by

interpreting legislations that are out of step.

In some countries, such as, for example,

Morocco (see our posts here and here),

Mauritius and Rwanda, legislators have

recently updated their existing legislation

statutes on arbitration.

Some jurisdictions are taking part in both

regional and international organizations,

including ICCA, OHADA, UNCITRAL,

UNCTAD and the Permanent Court of

Arbitration, promoting international

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

countries and the increase of foreign

investments and cross-border

transactions highlight the need for

predictable methods of dispute

resolution and the need for African

practitioners to take a more prominent

role in international arbitration practice.

Adolphe Birehanisenge of the Burundian

Agency for the promotion of

Investments recently told Global

Arbitration Review that Burundi entry to

the New-York Convention is “an

important step for the improvement of the

business climate.”

International commercial operators are

usually reluctant to arbitrate in

jurisdictions that are not party to the

New York Convention. Foreign

businesses often prefer to trade with

entities in jurisdictions applying the

Convention knowing that local courts

will ensure the efficiency of arbitration

agreements and enforce arbitral awards.

Therefore, signing the Convention is a

means for African countries to establish a

climate of confidence for investors and to

promote international arbitration.


BURUNDI'SACCESSIONTOTHENEWYORKCONVENTION,ACONFIRMATIONOFTHEAFRICANTRENDTORELYONARBITRATION


HE London TInternational

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

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.

According to Kadiri Momoh, a

solicitor and principal of

Mitchell Simmonds Solicitors,

London and one of the

organisers, topical issues in

international arbitration from

a London, international and

comparative basis respectively

will be discussed.

“A large contingent of the

Nigerian judiciary is also

expected at the event.

Certificates of attendance and

Continuous Legal Educations

points will be awarded at both

events.

Momoh said recent years

have seen marked growth

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.

The fee also includes on the

first evening a champagne

reception and dinner aboard a

luxury cruise boat along the

River Thames.

According to Momoh, the city

of London is not just a legal

centre, but also a global

financial and commercial hub

with a global appeal. “Very

recently, over 80 percent of

parties to arbitration at the

London Court of International

Arbitration (LCIA) were of

non-UK origin.

“ London remains the

preferred seat of arbitration,

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

INTERNATIONALARBITRATIONCONFABHOLDSJULYINLONDON



he Permanent Court Tof 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.

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,

International Arbitration Act

2008 and with the promotion

of the pacific settlement of

international disputes in and

with respect to the region. The

PCA opened its Mauritius

office in September 2010.

The PCA is currently

administering 97 pending

cases, 18 of which involve one

or several parties from Africa.

Singapore, South Africa and

the United Arab Emirates.

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

(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)

PCAHOLDSHEARINGINMAURITIUS


entral African CRepublic (CAR)

President

Catherine Samba-

Panza 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

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 Secretary-

General 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.

CENTRALAFRICANREPUBLICPRESIDENTREQUESTSICCINVESTIGATION


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 pre-

trial 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.

The

International

Criminal

Court (ICC)

[official

website] on Thursday

confirmed charges

[decision, PDF; press

release] against

former

Ivo

est African Wgovernments

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

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].

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

ICCCONFIRMSCHARGESAGAINSTFORMERIVORYCOASTPRESIDENT

REPORT:WESTAFRICANGOVERNMENTSSHOULDDECRIMINALIZEDRUGUSE


ibya's Supreme LConstitutional 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 al-

Thinni 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

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 al-

Islam Gaddafi and former

intelligence chief Abdullah al-

Senussi 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.

LIBYATOPCOURTDECLARESPMAPPOINTMENT

UNCONSTITUTIONAL


ubai-based DDamac

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.

Sentenced to five years in

prison and fined USD 40.5

million by the Cairo court,

Sajwani is thought to be

among the richest UAE

nationals, with an estimated

wealth of USD 2.5 billion.

The deal, concerning a 30

square kilometre tract in the

Gamsha Bay leisure

development, had been

brokered by Egypt's former

tourism minister, Mohammad

Zuhair Garranah, at whose

trial for corruption the ruling

was made against Sajwani.

Damac's arbitration claim was

filed on 13 May at the

Washington-based

International Centre for

Settlement of Investment

Disputes (ICSID).

An arm of the World Bank,

established in 1966 by the

Washington Convention, the

ICSID is considered to be the

foremost arbitral institution

for investor-state dispute

settlement.

According to Damac, by

convicting Sajwani in absentia

Egypt breached the Bilateral

Investment Treaty (BIT) which

protects investments by UAE

nationals in the country.

In doing so Egypt was, the

company said in a statement,

“responsible for a series of

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

commitments made by the

previous regime.”

It is, she notes, “almost as sure

as night follows day.”

That being said, for Willems

“there is very little at this

stage which enables us to say

whether or not there was a

problem with the way the

previous regime conducted

this particular commercial

transaction.”

“Egypt has defended many

ICSID claims over the years,”

says Craig Tevendale, an

international arbitration

partner at Herbert Smith, “but

this will be the first which is

solely attributable to the

actions taken in the post-

Mubarak era.”

From a broader perspective,

he believes that the case is

worthy of further note

“because it is very unusual to

see a matter of this nature

brought by an Arab investor

against an Arab state –

although, of course, there are

very significant differences

between Egypt and the UAE

in a great many respects.”

'Several legal violations'

What is equally clear,

Tevendale says, is that this

will not be the last such claim.

He explains: “it is no secret

that there are a number of

other parties, and certainly not

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.

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.”

Guilt by association

Kenneth Fleuriet, a partner in

King & Spalding's

international arbitration

practice, acting as counsel for

Damac's chairman, said that

the prosecution and

conviction of Sajwani was “a

classic case of guilt by

association.”

He acknowledged the

Egyptian court's finding that

the amount paid for the

Gamsha Bay property was too

low: sold at USD 1 per square

metre – a third of its true

value, according to the

country's tourism authority.

The transaction – bought

through direct allocation

rather than a public auction –

was nonetheless, Fleuriet

explained, “entirely proper,

and Damac was entitled to

rely upon the price charged by

the government at the time.”

It was, he added, “an 'arms

length' transaction that was

fully vetted by the appropriate

Egyptian officials at the time

of purchase.”

DAMACFILESFORICSIDARBITRATIONAGAINSTEGYPT

rally in Zambia's Akwacha, the

world's second-

best performing

currency this

month, and record high yields

are attracting foreign investors

back to the nation's Treasury

bills.

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

international investors, the

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 central bank have talked

down fears regarding the

currency of late and also their

expectations of the fiscal

deficit,” Nema Ramkhelawan-

Bhana, an Africa analyst at

Rand Merchant Bank, said

today by phone from

Johannesburg. “That perhaps

has shored up confidence.”

Positive Fundamentals

Zambia's budget deficit

swelled to 6.8 percent of gross

domestic product last year

compared with a 4.3 percent

forecast as corn and fuel

subsidies and civil-servant

wage increases boosted

spending. This year's deficit

will be 5.2 percent of GDP,

down from a previous forecast

of 6.6 percent, mainly because

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

economy,” David Chewe,

investments director at

National Pension Scheme

Authority, said by phone from

Lusaka, referring to bids from

foreign investors.

Yields on the benchmark 364-

day Treasury bills have

increased by 4.24 percentage

points this year.


ZAMBIALURESFOREIGNERSBACKTODEBTWITHRECORDT-BILLYIELDS


awmakers in Guinea Lapproved an

agreement signed by

the government, Rio

Tinto, Chinalco and

the International Finance

Corp. that plans $20 billion

contract because of the quality

of shareholders Rio Tinto,

Chinalco and IFC, the World

Bank's private-sector financing

arm.”

Simandou is the world's

largest untapped iron-ore

resource. The deal foresees the

construction of a 650-

kilometer (403-mile) railway

and a deepwater port.

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

GUINEA'SPARLIAMENTAPPROVESRIOTINTO$20BILLIONAGREEMENT

he Bank of Ghana Treversed 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.

The central bank overturned a rule that requires exporters to convert proceeds from sales abroad to the cedi in five days, Benjamin Amoah, head of financial stability, told reporters in Accra, the capital.

“With the review it is expected

that availability of foreign

currency on the market will

increase.”

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

importers and set limits on

who can have accounts

denominated in foreign

currencies.

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.

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 days, he said.

“We've seen that some

economic agents, because of

misapplication of the rules, are

having problems, and we're

streamlining it,” he said.

GHANAEASESFOREIGN-CURRENCYRULESTOINCREASEGREENBACKSUPPLY

he man at the centre Tof 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.

He was found guilty of a

multi-million pound fraud on

Friday and will be sentenced

next month.

In 2003, Somaia was ordered

to give evidence to an inquiry

into the Goldenberg scandal,

an export scam allegedly

sanctioned at the highest

levels of Moi's government.

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.

But Kenya has no diamonds

deposits and produces only a

tiny amount of gold, and

subsequent inquiries found its

exports were fictitious.

However large payments

associated with the scam were

said to have passed through

Mr Somaia's bank Delphis.

Proceeds from the scam were

used for foreign currency

speculation, which sent the

Kenyan shilling into freefall

and national inflation soaring.

He was jailed for the alleged

scam in 2004, but his

conviction was quashed the

following year.

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.

But now he has been

convicted at the Old Bailey of

swindling $19.5 million

(£11.5million).

'KING CON'

Ketan Somaia, who boasted of

his close friendship with the

billionaire Hinduja brothers,

was dubbed 'King Con', by the

Daily Mail newspaper, is said

to have wooed his victims

with luxury trips on private

jets, Champagne parties,

extravagant dinners and

expenses paid trips to Dubai,

Kenya and South Africa.

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.

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.

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


$19.5MFRAUD:ATLAST,UKCOURTCONVICTSKETANSOMAIA

Dr. Gbenga OduntanSenior Lecturer, Kent Law School, UK

counts of obtaining money by

deception totalling $3.5

million.

Mr Ketan Somaia “was what is

sometimes called a confidence

trickster, but on a grand

scale,” said William Boyce QC

for the prosecution.

His lavish lifestyle was being

paid for by people whose

money was “taken and not

given back”, in a “systematic

series of frauds”.

The Guardian reported that

Mr Mirchandani, who made

his fortune in food and

chemicals, pursued Somaia for

more than a decade and was

the primary complainant in

the successful Old Bailey trial.

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.

His personal assistant, Arifa

Parkar, said in evidence that

she had eventually left

Somaia's employ, exhausted

by fielding calls from unpaid

creditors, after he failed to pay

her wages.

“How could I survive without

GOVERNMENT

CONTRACTS

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.

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.

But a decade later Delphis also

collapsed, with its branches in

Nairobi, Mauritius and

Tanzania closed or bailed out.

By 2002, Somaia had been

arrested by Hertfordshire

police for allegedly taking

£500,000 from a local

entrepreneur. He fled to

Kenya, and the Crown

Prosecution Service was not

able to secure his extradition

In 2008, he was arrested in

India while attending a

wedding, and extradited to

the UK.

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

involved, the extraordinary

lifestyles, the famous names,

the world of international

businessmen and the

outpouring of $23 million

simply relying on the concept

of 'My word is my bond'.”

Somaia is due to be sentenced

later this month after a

medical report.

money?” she told the trial.

Somaia was said to have lured

his victims by claiming that he

had a personal fortune of $100

million and that his companies

were worth $500 million.

He laid on all-expenses-paid

trips to Africa to entertain

business clients, and his

Dolphin group owned some of

the most prestigious hotels

including Treetops Lodge,

where the young Queen

Elizabeth spent her

honeymoon.

In Somaia's defence, barrister

James Woods QC claimed Mr

Mirchandani had given the

money knowing there was a

risk it might be lost.

“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

business relationship. He

gambled his money on Ketan

Somaia. You win some and

you lose some but you take it

in your stride. This was no

fraud.”



re African Acentres truly prepared to compete for international arbitration work?

A few jurisdictions in sub-Saharan Africa have certainly positioned themselves to compete favourably with London, Paris, Geneva, and

New York for certain types of international arbitration work. The question is “what types of international arbitration work”? In my view there are two categories of international arbitration work that sub-Saharan African jurisdictions will be better placed to handle, given economies of scale and other factors. One category will be disputes arising from

positive reforms of laws and institutions in these jurisdic-tions.

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

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 Sub-Saharan jurisdictions as Lagos, Mauritius, Kigali and Accra. There have been significant

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.


AFRICAONTHEGLOBALARBITRATIONMAP:AREWETRULYPREPARED?BabatundeFagbohunluSAN


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 improve-ments 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 incorpo-rates 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 arbitra-tion 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 stake-holders – 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


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

in these areas. Legislators need to work hard at reform-ing Africa's arbitration laws and to ensure that such laws are constantly reviewed to keep pace with developments in modern business. The substantive laws which relate to transactions that are typically arbitrated must be sophisticated enough to provide a good and compre-hensive legal framework for resolving complex business

disputes. Today, parties typically choose English law and English jurisdictions (courts or arbitration) because English law is widely perceived to be so sophisti-cated 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 conduct-ing arbitrations.

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 litiga-tion?

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 commerce grows, there is a greater need for integration of laws and institutions. The OHADA system is a good example, but it is constrained

by the historical fact that it started as an essentially francophone system. There has also been some debate about harmonising the arbitration laws of the SADC States. I think all of this is good, and efforts should be

have the most critical role to play. 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 – energy, infrastructure, finance, agency and distributorship, construc-tion, shipping etc. Legal education institutions have to develop their capacity to impart knowledge and skills

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 – energy, infra-structure, finance, agency and distributorship, construction, ship-ping etc. Legal education institutions have to develop their capacity to impart knowledge and skills in these areas.



made to integrate systems beyond sub-regional bound-aries, and to achieve a truly pan-African system.

What developments can you observe in the Judicial Approach towards enforce-ment and challenges against international Arbitral Awards?

More than 30 African states have signed up to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and many have statutory provisions which implement the New York Convention. Generally the legal framework for enforcement exists, and most courts tend to take a pro-arbitration stance. The challenges lie with questions of judicial independence, capacity and efficiency. We have encountered problems when seeking to enforce awards against governmental agencies. Judicial processes tend to be slow and easily susceptible to unscrupulous dilatory tactics by defence

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.

Can you advise General Counsel on five practical tips that can be used for Pre-Arbitration Settlement?

One, have a Dispute Resolution Policy

Two, do an independent evaluation as early as possible

to assess strengths, weak-nesses 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.

lawyers. And there is also the problem of corruption.

An increase in the number of cases involving state entities coming from Africa has been observed lately, how well have we balanced the notion of state contract, state immunity from execution and the attitude of the African courts towards arbitration involving state entities?

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. As I said before, we have noticed that arbitration against state entities presents peculiar features and difficulties of its own. This underscore the need to strengthen judicial inde-pendence, but perhaps more importantly, it also under-scores the need for contract negotiators to be careful when they choose their seat of

At least in Nigeria, when a State entity operates in the commercial space, it is susceptible to arbitral, judicial and enforcement proceed-ings in the same way as any other commercial entity. The same will be true of most other African countries.


e do need Wto regard each person as an individ-ual, 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

∙ 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

WHAT ALL GENERATIONS ARE LOOKING FOR

All of these generations rate the following factors among the highest in their work lives according to numerous surveys:

∙ Meaningful work

∙ The opportunity to learn and grow as a professional, whether as an attorney, paralegal, in an administrative function (marketing, recruit-ing, professional develop-ment, IT, etc.), or as part of an attorney team

∙ To feel appreciated and listened to

∙ Financial compensation

∙ Nonfinancial rewards, such as the time and ability to work some of the time in locations outside the office

∙ Relief from intense stress

In addition, particularly for attorneys who aspire to stay at

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 giv-ing—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 collabor-atively. 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-dues-first concept. The pace of change they have lived through negates the willing-ness 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 fre-quently than annually or even semi-annually. But the

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.

THINGS TO REMEMBER ABOUT EACH GENERATION

Many generational attributes are reflected in workplace behavior. Keep these in mind when developing engagement and retention strategies:

Baby Boomers

∙ Like in-person contact and establishing relationships first

∙ Are continual learners and want to work for intellectual stimulation

∙ Are still competitive and in the game, and most have no concept of themselves as “old”

Generation X

∙ Are self-reliant, and want their own piece of the action

∙ Are willing to learn as they go

AMULTIGENERATIONALAPPROACHTOENGAGEMENTANDRETENSION By Phyllis Weiss Haserot

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.


Boomers have experienced a longer time frame for leadership and promo-tion—and think the younger generations should also have to wait and achieve a series of milestones.

Also significant, the genera-tions 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 profes-sions 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 mentoring and training

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 engage-ment 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.

∙ 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 develop-ment results.

∙ Little long-term talent planning and management beyond an obsolete recruit-ment system

∙ An hourly billing and pay-your-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 every-one 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 engage-ment 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 employ-ees, partners or senior associates failing to give credit to associates or staff for their suggestions, and people consistently feeling their Ά

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he Starting line TParty 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 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

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


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

DOMESTICARBITRATIONINDOMESTICARBITRATIONINNIGERIA:CANFOREIGNNIGERIA:CANFOREIGNCOUNSELSTILLRUNCOUNSELSTILLRUNTHERACE?THERACE?

DOMESTICARBITRATIONINNIGERIA:CANFOREIGNCOUNSELSTILLRUNTHERACE?

Oghogho Akpata and Adewale AtakePartners, Templars

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.

The Stakes

In the light of the restrictive

definition of legal practitioner‟,

It may be argued that in as

much as Article 4 of the Rules

require participation of local

counsel in domestic

arbitration, the provision

lends support to local content‟

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

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 multi-

jurisdictional 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 cross-

jurisdictional experience that

is essential in today‟s global

market place.

For parties who are

represented by persons not

enrolled to practice law in

Nigeria, Article 4 of the Rules

and its recent application by

an arbitral tribunal presents a

challenge. The role of foreign

counsel would be limited to

advisory or consultancy

services in domestic


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

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 non-

compliance 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.



NIGERIA:SOVEREIGNIMMUNITYANDTHETRIALSOFAUGUSTOPINOCHET1] INTRODUCTIONInternational 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 SANPrincipal Partner, B. Ayorinde & Co


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

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.

2] SOVEREINGN IMMUNITYSovereign immunity as a judicial doctrine is one which precludes the bringing of judicial proceedings against a government without the consent of the government. Its history is founded on the ancient principle that "the King can do no wrong", or what I call the 'Kabiyiesi Principle'. The word Kabiyiesi (or kabi-o-osi) literally translates as 'querying or holding you accountable will not arise'. It is used to address the Oba, the all powerful monarch who is not accountable to anyone.Most civilized and democratic Nations including Nigeria have essentially done away

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 – 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 made special study of the provision that I believe may be applied to exclude this immunity. S.22 is the closest but then it only deals with determination of rights and talks about fair hearing. No provision has helped.Happily for the country, but this does not affect the instant case, section 6 of the 1979 Constitution which vests the judicial powers of the country in the court has to my mind removed this anachronism." See also Abacha v Fawehinmi (2000) 6 NWLR pt 660.

3] THE TRENDTEX CASEThe law on sovereign immunity like the entire concept of international law is still at a formative stage and

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; andc. 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


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

High Court against the CBN claiming the demurrage, the price of the cement shipped and damages for non – 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


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 BACKGROUNDAugusto 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'état 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

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 COURTThe 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 APPEALThe 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 TALEFollowing 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


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.

8] THE PETITIONA new panel of the House of Lords was constituted. It had none of the Judges that took the decision of the 25th November, 1998. It was now heard by Lord Browne Wilkinson, Lord Goff of Chievely, Lord Nolan, Lord Hope of Craighead and Lord Hutton. Oral judgment was given an 17th December, 1998 while reasons given on 17th January 1999. The Court set aside the order made on the 25th of November, 1998 and directed a re – hearing before a fresh panel. The Court heard very detailed submissions by lawyers on both sides and

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 judgment, order or decision of a court is presumed to be correct unless and until that presumption is rebutted and the judgment is set aside. it subsists and must be obeyed. See the case of Babatunde v Olatunji (2000) 2 SC 9.Even though it may be a tough task the Supreme Court has always stated its preparedness to reverse its own decision in appropriate cases. See the case of Samauel Oke v Lamidi Aiyedun (1986) 4 SC 81, Ukpe Orewere & Ors v. Rev. Moses Aberigbe & Ors (1973) 1 ANLR pt 14 pg 1, Attorney General of Federation v. Guardian Newspapers 1999 5

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 APPEALThe 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


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 – heads of states for official acts of torture would survive the ratification of the Convention.

10] IMPLICATIONS OF PINOCHET'S FAILURE TO SECURE SOVEREIGN IMMUNITYThe 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

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.

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] CONCLUSIONI 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


court grants an order of Ainjunction 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,

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

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-à-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

NIGERIA:INJUNCTIONSPENDINGARBITRATION:ALEGALMYTH? Faruq Abbas

Associate Counsel, Strachan Partners


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.

Does A Nigerian Court Have

contained in the First

Schedule of the Arbitration 1and Conciliation Act which

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

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

(3) of the Arbitration Rules,

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

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,


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.

Should the Case of NV

Scheep v. MV S. Araz (2000)

15 NWLR (Pt. 691) 622 Act as

a Bar Against the Granting of

an Order for Injunction

Pending Arbitration?

It is submitted that the case of

NV Scheep v. MV S. Araz

(Supra) ought not to be

permitted to act as a bar

against the granting of an

order of injunction pending

arbitration because the

provision Article 26 (3) of the

Rules made pursuant to the

Arbitration Act is quite clear

that a Court has the power to

grant an order of injunction

pending arbitration

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


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


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.

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 on-

going 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

that the Applicant could have

brought the application for

interim reliefs before the

Arbitral Tribunal, but it failed

to do so, is enough ground for

the Court to have refused to

grant the order for interim

reliefs pending arbitration.

This is because an application

for interim reliefs pending

arbitration ought only to be

made to the Court in rare

cases where the Arbitral

Tribunal cannot consider it or

where it cannot be made

before the Arbitral Tribunal

due to a delay in the

empanelment of the Arbitral

Tribunal.



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

Africa seems to be recording huge develop-ments in investments and the economy but can Africa Now Attract International Arbitration?

conomic Development of any ECountry 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

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.

ENHANCINGAFRICAASTHEARBITRATIONHUB


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 particu-larly 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.

This apparent inequality before the law encouraged foreign entrepreneurs to carefully, at the onset of the negotiation, provide for other methods of settlement of dispute by arbitration under the auspices of an International Institute, the rules of which they were familiar with e. g. the Rules of the International Chamber of Commerce (i.e the ICC Rules)

With the rapid growth of

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 under-standing 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

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 special-ized 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 – Africa 9, Asia 7, Eastern Europe 5, Latin America 6, Western Europe and others 9, ( the category described as “others” included Australia, Canada, New Zealand and the United States). Observers were also allowed to partici-pate in the work of the Commission except that they had no right to vote. Voting rights were not utilized during the work of UNCITRAL because decisions were reached by consensus. Those

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 arbitra-tion 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 applica-ble 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 enforce-ment 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 enforce-ment 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.

The factors that accounted previously for the deluge in the number of arbitrators are generally fading away because developing countries particu-larly countries in the Africa

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 other-wise provided in any particu-lar 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 annexation of the multi-door Court House to the Courts. This same mechanism has been adopted by the High Court in Abuja and Port Harcourt. Other State

jurisdictions in Nigeria are also looking into adopting the same process. Lagos state has also passed the Arbitration law 2009 and Rules which projects Lagos as a seat of arbitration.

At a recent forum in London, experts agree that while litigation appears the best option for dispute resolution in London, Arbitration is preferred in Nigeria. Why is arbitration the better option?

I think this suggestion has been quoted out of context. There is no preference in the two regimes of litigation and arbitration both in England and Nigeria. Arbitration is regarded as a private law system for the settlement of disputes under which the parties agree to appoint their own judge or judges (arbitra-tor(s)) who will decide according to their agreement and the parties agree to be bound by their decision. It is different from litigation which is a public law system whereby parties refer their disputes to the State Court for resolution and no previous agreement is necessary for litigation. Also in Litigation a trial Court consists of a judge(s) appointed by the State and proceedings are public and open while procedures are in accordance with the Rules of Court.

Arbitration takes a vibrant place in the English judicial system, under the recent UK Arbitration Act 1996. London is very popular as a place of arbitration chosen by parties, particularly in International Arbitrations.

The ICC recently released its new rules. What are the key Innovations under the 2012 ICC Rules?

The International Chamber of Commerce (ICC) was founded in 1919, and its objective is to facilitate international commerce as a source of peace and prosperity throughout the world.

Its 2012 New Rules of

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 interna-tional treaties such as the New York Convention.

The ADR (amicable dispute resolution) Rules aim to facilitate a negotiable settle-ment with the assistance of an independent neutral. The default procedure under the ADR Rules is mediation, but the procedures also encom-pass conciliation, neutral evaluation and a variety of combinations of these and other techniques.

Both sets of Rules provides for administered procedures which requires parties to file an application with the International Court of Arbitration(“the court”) for arbitration or the International Centre for ADR (“the Centre”) for ADR as appropriate.

The key innovation under the 2012 Rules deals with –

(1) The general provisions and the Arbitral Tribunal

(2) Improving time and cost efficiency – the inclusion of case management conference to consult parties on procedural measures which may enhance the time table of the arbitral proceedings. Examples of such case management techniques are listed in APPENDIX IV of the Rules and include-

(a) Bifurcating the proceedings or rendering one or more partial awards on key issues, when doing so may genuinely be expected to result in a more efficient resolution of the case.

(b) Identifying issues that can be resolved by agreement between the parties or their experts.

(c) Identifying issues to be decided solely on the basis of documents rather than through oral evidence or legal arguments at a hearing.

(d) Production of documentary evidence:

(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.


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

experts) so as to avoid repetition and maintain a focus on key issues.

(f) Using telephone or video conferencing for procedural and other hearings where atten-dance in person is not essential and use of IT that enables online communication among the parties, the arbitral tribunal and the Secretariat of the Court.

(g) Organizing a pre-hearing conference with

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 settle-ment 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 commence-ment 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, other-wise agree.

Also in multiparty arbitration claims may be made by any party against any other party but no claims may be made after the Terms of Reference are signed and approved by the Court without the authorization of the arbitral tribunal.

In addition claims arising out of or in connection with more than one contract may be made in a single arbitration,

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

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.

Mrs. Tinuade Oyekunle is one of Nigeria's most respected International Arbitrator. She is a seasoned Chartered arbitrator, handling complex interna-tional 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, “Women in Arbitration”


irrespective of whether such claims are made under one or more than one arbitration agreement under the Rules

Also two or more arbitrations pending under the Rules may be consolidated into a single arbitration by the Court and at the request of a party where;

(a) the parties have agreed to consolidation; or

(b) all the claims in the arbitrations are made under the same arbitra-tion agreement; or

(c) where the claims in the arbitrations are made under more than one arbitration agreement, the arbitrations are between the same parties, the disputes in the arbitra-tions arise in connection with the same legal relationship and the court finds the arbitration agreement to be compati-ble.

The Court while deciding whether or not to consolidate may take account of any circum-stances it considers to be relevant including whether or more than one of the arbitrators have been confirmed or appointed in more than one of the arbitrations, and if so whether the same or different persons

have been confirmed or appointed.

It should be noted that when arbitrations are consolidated, they shall be consolidated into the arbitration that com-menced first, unless otherwise agreed by all parties.

(4) Emergency arbitrator provisions.

Article 29 of the 2012 Rules provides for the appointment of an Emergency arbitrator where a party needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal. The Emergency arbitrator's decision takes the form of an Order and the parties undertaken to comply with any Order made by the Emergency Arbitrator. The Emergency Arbitrator Rules (Appendix V of the new Rules) apply only to parties that are either signatories of the arbitration agreement under the Rules that is relied upon for the application or successors to such signatories. It is important to note that the Emergency Arbitrator provisions are not intended to prevent any party from seeking urgent interim or conservatory measures from a compe-

tent judicial authority at any time prior to making an appointment for such measures and in appro-priate circumstances thereafter, pursuant to the Rules; any application for such measures from a competent judicial authority shall not be deemed to be an infringe-ment or a waiver of the arbitration agreement; any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat.

(5) Ethical issues in International Arbitration

Ethics have been said to ensure legitimacy in international arbitration so that awards emanating from the decision of arbitrators may be easily accepted by parties rather than lead to a continuum of Court cases and subsequent ill-feelings among commercially friendly parties. The huge focus on Ethics arose from among other things the high stakes in Arbitration, disputes involving huge sums of money and the expansion of trade among global communities with different cultural and ethnic philosophies, with less instinctive trust either in the adjudicators and/or the administering

institutions.

Under the 1998 ICC Rules-

Section 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


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.

Article 11(1) of the new ICC Rules provides as follows:-

1. Every arbitrator must be and remain impartial and independent of the parties involved in the arbitra-tion.

2. Before appointment or confirmation, a prospec-tive arbitrator shall sign a statement of acceptance, availability, impartiality and independence. The prospective arbitrator shall 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, as well as any circum-stances that would give arise to reasonable doubts as to the arbitrator's impartiality.

The Secretariat shall provide such information to the parties in writing and fix a time limit for any comments from them.

3. An arbitrator shall immediately disclose in writing to the Secretariat and the parties any facts or circumstances of a similar nature to those referred to in Article 11 (2) concerning the arbitrator's impartiality or independence which may arise during arbitration.

The provision in Article 11 (2) above relating to 'reasonable doubts' is of more objective effect than the subjective effect of clause 7 (2) of the old Rule.

Ethical principles relating to Arbitrators are now on the forefront of the arbitral practice both in domestic and international arbitrations.

Under the ICC Rules arbitra-tors may be appointed by the parties or by the ICC Court. It

dispute which includes an arbitration agreement in it have the autonomy to choose whoever they like to adjudi-cate 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.

Arbitration without emergency arbitrator

All disputes arising out 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 Emergency Arbitrator provisions shall not 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

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 follow-ing 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 obliga-tions 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 Rules within 45 days follow-ing the filling of a Request for ADR or within such other period as the parties may agree in writing, such dispute 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 of arbitration.

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

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 impartial-ity and independence in accordance to his undertaking in the form of declaration signed by him prior to appointment. Any appear-ance of impropriety on the part of an arbitrator may affect the confidence of other parties and other members of the Tribunal, which may lead to his removal.

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. The arbitrator is under an obligation to inform himself about what standards his conduct will be measured by and to conform with those standards.

The question the arbitrator should try to reminiscence on is by what standard would a reasonable man judge the

issues relating to his impartial-ity and independence? The various standards that have emerged (e.g. under the IBA Guidelines and other Institutional Arbitration Rules) are designed to protect the integrity of the process and to avoid unnecessary costs and delay in the arbitral proceedings. All efforts should always be made by the arbitrator(s) to work diligently and judiciously to issue valid and enforceable award(s) and forestall the intention of recalcitrant parties who want to stall the arbitral process. It must always be remembered that conduct and integrity are critical to the legitimacy of International Arbitration.

Parties to a commercial

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.



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 particu-lar 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 two-tiered 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

parties to file requests under ICC ADR Rules or the ICC Rules for Expertise at any time, even after a dispute has arisen or in the course of other dispute resolution proceed-ings.

How will you assess the benefits of the various Bilateral Investment Treaties (BITs) and other Investment liberalization Treaties to Nigeria?

Bilateral Investment Treaties (BITs) and other Investment Liberalization Treaties are of great benefit to an emerging economy like Nigeria. Hence the continuous call by the Government inviting investors particularly foreign investors to come and invest in the Country. The obligation of States to provide “fair and equitable treatment” to foreign investors is a standard provision in modern BITs and multilateral treaties concern-ing investment. Such fair and equitable treatments are usually associated with stability, predictability and consistency of the host State's legal framework. The core aspect of norms of law allows individuals and entities to

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, particu-larly those under the demo-cratic 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 expecta-tions that were taken into account by the foreign investor at the time the investment was made. The deliberations on the matter of foreign invest-ments are complex and time will not allow the discussion of the various ramifications in this interview.

Even where the dispensations, tax havens and other palliatives granted the foreign investors appear attractive problems from disputes arising have not been averted. Many African States including Nigeria gave overwhelming support to the ICSID Convention and at the adoption of the Convention there was a prevalent view that the protection of foreign investors was coterminous with the protection of the general interest of develop-ment in the third world Countries.

Settlement of Investment disputes are generally provided for under the BITs and other multilateral treaties. According to Section 25 (1) of the ICSID Convention,

'The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an Investment between a contracting State (or any constituent subdivision or agency of a Contracting State, designated to the Centre by that State) and a national of another Contracting State , which the parties to the dispute consent in writing to submit to the Centre'.

When the parties have given their consent, no party may withdraw its consent unilater-ally.

The question of what is an investment under the Convention has attracted proactive debate and carries

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 always taken prominent part in arbitration and they have been severally appointed as arbitrator(s) to settle disputes. As the dispute settlement mechanism gained promi-nence, women have taken their rightful place except that the number was not as many as male arbitrators.

In the 1980s there were few women in the international dispute resolution community and it was realized that they could benefit significantly from the creation of a network to enable them to share ideas, celebrate their achievements and work together to find ways to promote women in the field. A friend and colleague of mine Louise Barrington invited a small group of women around the world who were active in dispute resolution to form an Association of women Arbitrators referred to as ArbitralWomen.

This is the birth of ArbitralWomen, Louise was in touch with me and spoke to me at length about the importance of forming the women group. Another colleague Mireze Phillippe established an electronic forum for the Group in year 2000.

The Group has grown to more than 600 women from more than 45 Countries of the world. The Group continues to advance the interest of women in arbitration and enhance their involvement in the practice of arbitration


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 develop-ment of young people in international arbitration. The youths get together, represent-ing different cultures and had very intensive debates on the pros and cons of case scenar-ios 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 participa-tion in that area of law.

The involvement of women in International Arbitration has been gradual and as Louise said “we are nearer its beginning than its end” 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 commu-nity is increasing e.g years ago women rarely represented parties in arbitration proceed-ings and other ADR mecha-nisms, 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

expedition when documents are requested, and allow the other party opportunity of presenting his case. It is also the duty of Counsel to grant mutual respects to parties in the proceedings rather than being recalcitrant.

Corruption in Arbitration. What are the risks and liabilities of Arbitrators?

Corruption is not specifically dealt with or defined under the Nigeria Arbitration and Conciliation Act and in most other national Arbitration laws, but any such acts may amount to misconduct and may result in challenge to the arbitrator. In the celebrated Nigeria case of Taylor Woodrow (Nigeria) Ltd V Suddenche Etna-werk GmbH (1991) 2 N W L R (pt175) 602 amongst the acts that amount to misconduct are listed fraud and corruption.

On the question of what key characteristics make for the perfect International Arbitral Tribunal?

Such key characteristics that make a good (not perfect) International Arbitral Tribunal are independence, confidence and impartiality.

On the question of what has been my experience in the International Arbitration.

My experience in the practice of international arbitration has been overwhelming. I took up the study of dispute resolution as a challenge when I was a legal adviser in the Federal Ministry of Industry and had to attend to matters that require interaction with foreign entrepreneurs. One of the most important part of my work in the Ministry was to advise Government on commercial contracts and to ensure that contracts entered into on behalf of Government were legally adequate and protect the right of parties. One of the agreements that held a place in my memory was the negotiation for the Peugeot automobile assembly plant. My legal colleagues from the civil law country wanted to put in a clause for settlement of dispute under the ICC Rules as well as apply the provisions of INCOTERMS. I responded that we also had a law on Arbitration under our 1958 Laws but that did not go down well with them and they pointed to the case stated

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

ArbitralWomen.

On the question of what advice I have for other women arbitrators. I will only say to them that being a good renown arbitrator is a developmental thesis of each individual woman but the top of the ladder is not impossible. I believe women possess rare genes for integrity which if developed make them perform excellently in any field of endeavour they chose, women Arbitrators must be heard and not just seen and they must uphold the independence, confidence and integrity that is required for the Arbitral profession in which trust is essential to gain the confidence of parties whose cases are being adjudicated upon. In other for a women to be known and respected in the field her indelible reputation must preceed her and transmit worldwide particularly in International Arbitration. I humbly believe that any woman who works hard and diligently will achieve utmost record and reputation. There is nothing that cannot be achieved with hard work and I commend that value to my female colleagues.

What are some of the likely problems faced by Arbitrators at the Tribunal level?

As has been seen above while discussing the principles of arbitration under the ICC Rules, prompt attention to issues, is required from the parties as well as the arbitral panel in order to safe costs. However, my personal experience in the practice of arbitration in Nigeria is that delays are always caused by parties and or their counsel who rather than remind themselves of the rules of the Arbitral process and the procedures guiding them still behave as if they are in court and thereby caused consider-able delay in proceedings by bringing frivolous applica-tions and objections which usually cost delay and increase costs.

In fact, Counsel representing parties in arbitration proceed-ings need to acquire special knowledge that arbitral proceedings defer from those in the courts. They should focus on the facts of the case, leave behind their fishing

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

knowledge with my col-leagues 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.

The involvement of women in International Arbitration has been gradual and as Louise said “we are nearer its beginning than its end” but women arbitrators are stepping forward with positive sure footed steps.



THEROLEOFLAWYERSINDIASPORAINSHAPINGQUALIFICATIONASALEGALPRACTITIONERINNIGERIAANDCONTINUINGLEGALEDUCATION By Olanrewaju Onadeko

DG, Nigerian Law School

THEROLEOFLAWYERSINDIASPORAINSHAPINGQUALIFICATIONASALEGALPRACTITIONERINNIGERIAANDCONTINUINGLEGALEDUCATIONINTRODUCTION

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.

The Nigerian Lawyer in diaspora is usually well trained, highly skilled and competent. It can also be assumed that he is patriotic and keen to plough back his expertise as much as possible, especially if conducive atmosphere exists back home.

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

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 profes-sional 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

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 men-tioned. 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 cross-border 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 objec-tives 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-

two stages – (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. A successful candidate at the Bar Final examinations is issued a qualifying certificate by the Council of Legal Education, stating that he is qualified to be called to the Bar. He is thereafter considered (pursu-ant to his application), by the Body of Benchers for call to the Bar if: (a) he is a citizen of Nigeria; (b) he produces a qualifying certificate to the Benchers; and (c) he satisfies the Benchers that he is of good character.

Nigerian Legal Education is moulded after the British Legal Education; and stemming from the Unsworth Commission's report and recommenda-tions in 1962, legal education is acquired in two stages – (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.


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:

“Foreign Firms bear a low risk of failure of the liberalization

process. If Nigeria liberalises legal services and a foreign

law firm, say Olswang, having opened shop in Nigeria decides for any reason that it no longer wishes to have a

Nigerian presence, it can simply disengage local staff,

pack up and leave for greener pastures. The foreign law firms'

goals are purely financial. The primary question for them is:

does it make commercial sense to have a Nigerian office?

Providing service to its international clients is secondary and dependent on the first question being answered in the affirmative.

We therefore need to re-align our profession in order to achieve the desired goal of low risk in relation to the survival of the local commer-cial Bar and high reward to be earned by re-tooling the Nigerian Bar to successfully compete and profit from the liberalization process”.

Even in the terrain of liberal-ization of legal services, the

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 perspec-tives 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.

The curriculum at the Nigerian Law School is loaded for the time frame of study. Without delving into the controversy of its adequacy or otherwise, I am convinced that in addition to what students at the School might have acquired by way of knowl-edge at the undergraduate

level, it is apt to expose them to the essentials of practice where legal services have inexorably acquired interna-tional 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 relation-ship 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 under-standing 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 competen-cies that technological advancement offer. The aim should be to enhance profi-ciency in the use of latest advancements in the digital world, from merely seeing computers as tools for word processing, to the super highway of digitalization.

NIGERIAN LAWYERS ABROAD AND CONTINUING LEGAL EDUCATION

The Council of Legal

need to proceed cautiously, bearing in mind the impor-tance 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 jurisdic-tions 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 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.

In addition to knowledge in the known specialized fields, a lawyer should know how to function in a globally diverse environment in relationships with clients, regulators and even lawyers in foreign jurisdictions. He must also be a person of high integrity, since this forms the basis of every interaction.

NIGERIAN LAWYERS ABROAD AND PRE-QUALIFICATION LEGAL TRAINING

I have already defined a Nigerian lawyer in diaspora as a legal practitioner whose domicile is outside the shores of Nigeria. He is generally well trained competent and efficient. There is the added advantage of being well positioned to learn about and experience the workings of novel spheres of law and practice.



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 educa-tion) 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.

The Nigerian Bar Association (NBA) has made commend-able efforts in organizing programmes for its members under the canopy of continu-ing legal education. But there is still a long way to go in ensuring a specific structure for the programme on regular basis.

lawyers in Nigeria. In addition, our lawyers in diaspora can assist in enhanc-ing 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 enhance-ment of the quality of training of lawyers, at the pre-qualification and post qualification levels. Of note are the envisaged benefits of their participation in continu-ing legal education, where they can function as co-facilitators at programmes on emerging areas of law as practiced in their jurisdictions of domicile.

If they can take up the challenge and be construc-tively engaged as suggested,

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 implementa-tion 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.

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 experi-enced 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 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 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 vice-versa.



MUTIUGANIYU:MUTIUGANIYU:GLOBALIZATIONANDGLOBALIZATIONANDTHEENFORCEMENTOFTHEENFORCEMENTOFFOREIGNJUDGEMENTSFOREIGNJUDGEMENTSINNIGERIAINNIGERIA

MUTIUGANIYU:GLOBALIZATIONANDTHEENFORCEMENTOFFOREIGNJUDGEMENTSINNIGERIAThe 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 influences the Nigerian legal market and the enforcement of foreign judgment in Nigeria.


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.

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

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 opportu-nity structure in the legal market itself.

An aspect of our law that seems to be unsettled concerns the enforcement of foreign judgment in Nigeria



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 simulta-neously in force. This can be seen from cases such as the Macaulay v RBZ Bank case,

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 employ-ing 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.

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 con-demned. 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 interna-tional 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 arbitra-tor, 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. Candide-Johnson 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 Attorney-General 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 respec-tive 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.

and more recently in Vab Petroleum v. Momah.

Managing litigation is not just about getting a success-ful 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 predict-able?

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

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.



his increased Teconomic momen-tum continues to create significant business opportu-nities 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-

political developments, vary widely. However, despite these differences, the enforce-ment 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.

THE NEW YORK CONVENTION

The New York Convention provides an extensive enforcement regime for foreign arbitration awards, subject only to a limited number of expressly stipu-lated exceptions.

There is no real equivalent for

the enforcement of foreign court judgments, 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 Convention, including Nigeria, Ghana, Cote d'Ivoire, Kenya, Tanzania and South Africa.

An arbitral award will be made under the New York Convention if it is made in the territory of a state which is a party to the New York Convention. Membership of the New York Convention is therefore of significant importance for investors who may need to conduct arbitra-tion and/or enforce an arbitral award in African countries where, for instance, enforce-ment is sought against a party that does not hold assets outside Africa or the investor's

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 competi-tive.

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.

ARBITRATING IN AFRICA: ENFORCEMENT REGIMES FOR ARBITRAL AWARDS

Africa is an incredibly diverse continent. The legal systems in each country, a product of inherited colonial legal systems and more recent

An arbitral award will be made under the New York Convention if it is made in the territory of a state which is a party to the New York Convention. Membership of the New York Convention is therefore of significant importance for investors who may need to conduct arbitration and/or enforce an arbitral award in African countries where, for instance, enforcement is sought against a party that does not hold assets outside Africa or the investor's African counterparty insists upon an African seat of arbitration.


ARBITRATINGINAFRICASub-Saharan Africa is currently among the fastest growing eco-nomic 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.

Simon Nesbitt & Rashidat AbdulaiHogan Lovells Int’l LLP


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, member-ship 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.

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, Côte d'Ivoire and Senegal. Accordingly, in these coun-tries, the requirements set out under article 5 of the New York Convention will apply for the recognition and enforcement of foreign, non-OHADA awards.

However, for the majority of

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, Côte d'Ivoire, Equatorial Guinea, Gabon, Guinea Bissau, Guinea, Mali, Niger,


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

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

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 (compris-ing twenty countries stretch-ing 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 alterna-tive 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 LCIA-MIAC 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 LCIA-DIFC 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 experimen-tal 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.

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.

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 arbitra-tion 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


A few African countries have recently informally indicated an inten-tion 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 environ-ments.



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ESQ LEGAL PRACTICE MAGAZINE JUNE 2014 EDITION