INTRODUCTION
The Nigerian Bar Association – Section on Legal Practice is ‘The Section’ of choice. It is where legal practice is domiciled in the parent body of the Nigerian Bar Association. It is where I belong! I cherish my long symbiotic relationship with this section and will whenever opportune make myself available to attend its annual conferences where I do gain tremendously from the shared experiences.
In the past few decades, all over the World, especially in Europe, more particularly in the United Kingdom, and in the United States, Alternative Dispute Resolution has become the mainstay in resolving both legal or other disputes.1 However, it is of utmost importance that before resort is had to Alternative Dispute Resolution, the parties consider and make informed decision on whether or not Alternative Dispute Resolution is not only right for them but is the best option in the circumstances of their legal or other dispute to warrant and justify their foray into it. Indeed, such a calculated step would obviate the need for any subsequent had I known.
ADR, A SOLUTION?
Now, whilst Alternative Dispute Resolution consist of several mechanism for resolution of legal and other disputes, including the Arbitration, Mediation and Conciliation, the best and most widely practised amongst members of the Legal Profession, and I hope I am right here, is Arbitration. In this brief opening remarks, I shall, and do intend, to focus on arbitration. The very competent and highly resourceful presenters already penned down for this session will, I am very certain, do justice to all the mechanisms making up the Alternative Dispute Resolution in their papers as to whether or not Alternative Dispute Resolution is a solution or an illusion. We shall soon, even as we eagerly await to, hear from them! Mine is just to set the ball rolling.
Arbitration, as a facet of Alternative Dispute Resolution, has been promoted by its apostles and adherents as a way to resolve virtually all contractual disputes efficiently. In doing so they usually, or should I say commonly, point to a number of advantages it offers over ad above unending litigations in the hallowed halls of our Courts in Nigeria, where some cases have spent over a decade and are yet to go through the mills of the hierarchy of Courts in the land. What a sad commentary. This is of course to be expected, though regrettably, in a system where the spirit of and accomplished expeditious determination of cases of a candidate is not one of the determinant requirement or consideration for elevation.
Arbitration avoids hostility. This so because the parties are usually encouraged to participate fully and sometimes even to help structure the resolution. Thus, they are often more likely to work together peaceably rather than escalate their angst and hostility toward one another. This is highly untenable in Court litigation.
Arbitration is believed to be cheaper than Court litigation. However, as more experienced lawyers get involved in Arbitration it would seem that it is also becoming more costly than was earlier envisaged by its apostles and adherents. Interestingly, in practice most of the parties to an Arbitration proceeding would or may still engage the services of lawyers to help and see them through the process and thereby adding to their costs. Yet, notwithstanding all these, it is still a truism that resolving a case through Arbitration is usually far less costly than seeking resolution of dispute through Court litigation. This is so because, more especially with the system of administration of justice and of litigation we have in this Country that keeps cases in the dockets of the Courts for years unending, Arbitration is quicker, more result oriented and generally even less complicated than Court litigation.
Arbitration is believed to be faster than Court litigation. It has been demonstratively shown that Arbitration is faster than Court litigation, except perhaps in litigation involving the most important class of people in Nigeria, the Political classes whose cases must, come rain come shine, be determined as prescribed by the basic law of the land, the Constitution of the Federal Republic of Nigeria 1999 (as amended), whilst the cases of ordinary Nigerians stay unending in the Courts. A cursory look at the time lines for resolution of disputes by the Court and resolution of disputes through the mechanism of Arbitration would readily reveal that those of disputes resolved by Court litigations are a far cry from those seamlessly and expeditiously resolved through Arbitration and other forms of Alternative Dispute Resolution mechanisms in Nigeria.
Arbitration proceeding is more flexible than Court proceeding. It appears that Arbitral proceedings are more flexible than Court proceedings. Indeed, the Court’s dockets, at whatever levels in the hierarchy of Courts in Nigeria, is always full to the brim and their calendars almost always oversubscribed and some cases being adjourned for upwards of one or in some extreme cases for even upwards of two years. But, in Arbitration the hearings can be, and are usually, scheduled around the needs, conveniences and availabilities of the parties involved, including even on weekends and in the evenings.
Arbitration proceeding is simpler than Court proceeding. In practice, Arbitration proceedings is run on and governed by more simplified Rules of Evidence and Procedure. In Court proceedings strict rules, often convoluted, of Evidence and Procedures hold sway. But it is not so with Arbitral proceedings where these strict rules of evidence and procedure do not apply, and thereby making them less stilted and more easily adapted to the needs of the parties involved. More importantly, Arbitration proceeding, being already an open and friendly proceeding, dispenses with the complicated procedures of discovery as are wont to be on full display in Court litigation, involving taking and answering of interrogatories, depositions, notice to produce documents etc, which are all geared, in most cases, and are the some of the causes for delay in Court litigation. In Arbitration proceedings, these processes made so complicated in Court litigation, are handled in very simple manner and could even be done by just a simple phone call or an email.
Arbitration proceedings are more private and personal than Court litigation. Private. Unless the Court gives leave to the contrary or orders otherwise, Court proceedings are held in the pubic and therefore, open to all and sundry for the parties to wash, as it is said at common parlance, their dirty linen in the glare of the public. But it is not so with Arbitration proceedings. They are generally held in private. Indeed, the parties can and do sometimes even agree to keep both the proceedings and terms of the final resolution confidential. This is of utmost important in cases in which the subject matter of the dispute might cause some embarrassment or reveal private information of the parties and or their clients or customers and other personal details to the glare of the general public, more especially in this era of online news!
ADR: AN ILLUSION?
All that glisters, it is often said at common parlance, is not gold! So, it is also with Alternative Dispute Resolution, particularly in Nigeria. Thus, an understanding and or appreciation of some of the possible drawbacks of Arbitration, as a mechanism for resolution of disputes will go a long way to help parties make informed decisions whether or not to enter into contractual transactions that mandatorily requires reference of disputes to Alternative Dispute Resolution, particularly or especially Arbitration or even to choose the mechanism of Arbitration or Mediation or Conciliation to resolve their dispute, whenever it arises.
Arbitration is elitist and more of a preliminary step to Court litigation in Nigeria. In Europe, especially in the UK, Arbitration is available and mostly affordable to many and the Arbitral Award is final by itself. Thus, it leads to complete and binding determination of disputes, and does not need any further assurances of any other or further mechanism or process to be implemented and or executed between the parties to the dispute, who had chosen arbitration as the method or means of resolving their disputes. But it is not always so in Nigeria, where Alternative Dispute Resolution, particularly Arbitration, has become an elitist agenda for the elites in business and commerce. It is also fast becoming just a means to an end and not an end in itself. Let me explain!
Arbitration has been reduced or has become merely preliminary steps or stages towards full Court litigation in Nigeria. Thus, once any or either of the parties to Arbitration feels otherwise either with the proceedings or steps taken therein or even with the Arbitral Award or when it is sought to be enforced, in Nigeria parties are wont to heading to the Court, and thereby beginning the real litigation journey over their dispute which they had already voluntarily and contractually submitted to Arbitration. But it is not so in Europe, particularly the United Kingdom and also not so in the United States, where Arbitral Awards need no further assurances by way of Court litigation to be implemented or executed between the parties.
In this sense, whilst one can easily and boldly too say that in Europe as in the United States, Arbitration is a solution or at least holds a great deal of hope of a solution to the parties whose dispute is submitted to Arbitration, it is not so in Nigeria, where Arbitration is more of a preliminary step or stage to Court litigation. Thus, in Nigeria Arbitration, being so insignificantly a solution, is more of an illusion or a mirage.
It is therefore, left to the apostles and practitioners of Alternative Dispute Resolution, particularly Arbitration, in Nigeria to move it out of its present merely elitist status or state into a more encompassing and embracing mechanism or means of dispute resolution in Nigeria.
Historically, even before the advent of modern forms of dispute resolution, including Court litigation and the formal mechanism of Alternative Dispute Resolution, Mediation, which is one of the most efficient forms of Alternative Dispute Resolution, was perhaps the only means of traditional dispute resolution amongst the traditional and ancient peoples and societies of Nigeria, nay Africa. Today, it is not so any longer as Court litigation, with its unending incidences, has become the lot of all, including even our traditional societies.
Arbitration offers only a limited recourse unlike Court litigation. Whilst, in Court litigation the final decision rest with the Court but is subject to several layers of channels of appeal and or review mechanism, it is not so with Arbitration, in which a final decision is hard to shake. Thus, if the Arbitral Award is unfair or illogical, a party may still well be stuck with it and barred forever from airing the underlying claim in a Court of law except there are legal grounds and or basis to challenge it in a Court of law.
Arbitration offers no level playing field unlike Court litigation. In practice Arbitration clause are in most cases the products of the stronger party, such as the large employer or manufacturer or even the seller. This is no so in Court litigation where supposedly all the parties are equal before the law and in the blindfolded eyes of the Court. So many, including even some apostles and adherents of Alternative Dispute Resolution, particularly Arbitration, ae genuinely concerned that nature of many of ‘Arbitration Clauses’ which leaves the weaker party with no choice in subscribing to them, such as employees or buyers, leave much to be desired as it inhibits a level playing field to the parties. It rather engenders an uneven playing field in favour of the stronger party to the obvious detriment and disadvantage of the lesser party to the dispute.
Arbitration involves questionable objectivity unlike Court litigation. It is also of grave concern to some, including the parties, that the process of choosing an Arbitrator or Arbitrators is not, or may not be, an objective one. This is so where and when the Arbitrator or Arbitrators, who is or are the ‘Decision – Maker’ is or are picked by an Agency from a Pool list, where those who become favorites may get assigned cases more often, with is attendant possible complication. Thus, it does appear that an Arbitrator or Arbitrators chosen by a party within an industry may be less objective and more likely to be biased in favor of the appointing group, just my thought though and I may be dead wrong!
Arbitration may involve lack of transparency. In practice, hearings in Arbitration proceedings are generally held in private unlike Court proceedings which are held in Open Courtroom. The decision of the Court is also rendered in the public. But it not so with Arbitration, in which the decisions are not usually rendered publicly and therefore, also not publicly accessible. These features of Arbitration may be, and is actually, considered beneficial by some but many lament and consider it as evidence of lack of transparency, with its attendant likelihood of bias, which may stick forever unless there are valid legal grounds or basis to challenge the Arbitral Award in Court.
Arbitration is increasingly becoming as costly as Court litigation. Whilst arguably, and to many, Arbitration is still less costly than Court litigation, yet to some the cost of Arbitration, fees, logistics and venue, are increasingly becoming as costly as Court litigation, and in some instances even costlier than Court litigation. Thus, with Arbitrator’s fees, multiplied by three if a Panel of three is involved, administrative cost, logistics etc to the bargain of Arbitration proceedings, it is increasingly becoming less of a bargain to parties, particularly those who cannot afford it but still have to resolve their dispute, and to such persons, the Court remains, perhaps deservedly or undeservedly, the last hope of the ‘common man’
APPRECIATION
I wish to, and do hereby, put on record my gratitude to the Chairman, Chief Ferdinand Orbih SAN, KSG, FCArb, and Members of the Nigerian Bar Association – Section on Legal Practice and the Chairman, Omubo V. Frank – Briggs and Members of the Conference Planning Committee for the honour of the invitation extended to me to Chair this Session and participate in this year’s annual general conference of this august Body. I shall never take tis privilege for granted. To all participants, may I seize this opportunity to sincerely welcome you once more to this 2022 Annual General Conference and to wish us all a very fruitful conference and a pleasant stay in this safe City of Asaba, Delta State of Nigeria and a safe return to our various destinations at the close of the Conference. And above all, to God be all the Glory, Amen.
Sir Biobele Abraham Georgewill JCA, DSSRS, KSC.
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See Arbitration: Pros and Cons by Barbara Kate Repa, Copyright ©2022 MH Sub I, LLC dba Nolo ®
THE ECHO 