By Innocent Anaba

Mr Momoh Kadiri, is a Nigerian lawyer based in the United Kingdom. In this interview, he spoke on the plan by the National Assembly to regulate the practice of Alternative Dispute Resolution, ADR in Nigeria and the need for the Arbitration and Conciliation Act Cap 18A Laws of the Federation of Nigeria 2004 to be amended, so that people don’t easily challenge arbitration awards in court, with the sole aim of frustrating same.

Excerpt:

The National Assembly is considering a bill for a National Arbitration Commission which seeks to regulate arbitration in the country. As an international arbitrator and solicitor in England, how is ADR regulated there?

Mr. Momoh Kadiri,

When you refer to ADR, that is alternative dispute resolution, you refer to arbitration, mediation, conciliation, expert determination and general adjudication, and so on. Generally speaking, and as for regulation of arbitration in England, you have the Arbitration Act 1996 which provides for the practice and procedure as far as domestic or arbitration seated in that jurisdiction is concerned in England, Wales and Northern Ireland. Of course you also have the chartered institute of arbitrators and many other bodies that are involved in championing the use and have also developed their rules for the conduct of arbitral proceedings so long as parties have agreed to such rules.

So to that extent the regulation of arbitration is substantially statutory as contained in the Arbitration Act 1996, but a lot of the practice has been largely developed and sustained by practitioners, various institutions and also the courts who would be hesitant to nullify and arbitral award on grounds lacking in merit.

With regards to mediation, there are provisions under the Civil Procedures Rules, CPR, for the use of mediation either as part of the pre-action protocol or even when proceedings have been initiated. The very recent reforms of Justice Jackson are geared towards encouraging the use of ADR, particularly mediation, as a way of reducing costs both for parties and the government.

There are also many bodies that are very effective and visible in the use of mediation. You have the Civil Mediation Council, CMC of which I am a member. You also have ACAS (the Advisory, Conciliation and Arbitration Service) which deals with largely employment disputes; you have many organizations that are very actively involved in promoting, training and development of mediation and ADR practice. In the light of the above, you have a combination of statutory provisions as well as the marked growth developed by many institutional bodies involved in the regulation of ADR in England.

It has been observed that while arbitration practice is open to all professionals in the United Kingdom and other places, in Nigeria, it is practiced mainly by lawyers. How can this trend be reversed?

I do not agree that arbitration practice is the exclusive preserve of lawyers. I know that most trained and practicing arbitrators in Nigeria also know that quite well. However, I agree that in Nigeria, the legal profession and indeed lawyers dominate arbitration practice. You are right that in the UK and some other jurisdictions, professionals that are non-lawyers are involved in arbitration. In the UK, Quantity surveyors, engineers, architects, accountants and others are very actively involved in arbitration. In fact, in the construction industry, the use of such professional non-lawyers is fundamental as they have the technical expertise which is very crucial in resolving such disputes.

In terms of the trend in Nigeria, I know few non-lawyers who are fellows of the Chartered Institute of Arbitrators. But I think that more professionals who are non-lawyers need to be encouraged, welcomed and trained in arbitration. Nigeria is currently undergoing significant development in various infrastructural sectors and the technical know-how of engineers, surveyors, architects, accountants and others cannot be over emphasised.

The contribution of professionals and their expertise are critical when matters turn on expert evidence in arbitration. In England, we now use and talk about ‘hot tubbing’which involves experts from the same discipline, or sometimes more than one discipline, giving evidence at the same time and in each other’s presence.

Arbitral awards get so easily challenged in Nigerian courts. How can this problem be addressed, so  that after an arbitral award, parties will not go to regular courts to wait for years to determine such cases?

Firstly, I think this is one area where reform is needed. The Arbitration and Conciliation Act Cap 18A Laws of the Federation of Nigeria 2004 needs to be revisited and amended to bring it in line with other jurisdictions where arbitration is working as an effective dispute resolution mechanism. It seems to me that the current Act allows too much room for unmeritorious or suspicious potential unsuccessful party to ‘play’ the rules and to delay and frustrate the potential successful party from reaping the benefits of an arbitral award. Second, I think the culture and attitude of lawyers and litigants need reorientation. It strikes me as if many lawyers and their clients in Nigeria are generally averse to arbitration or ADR in general.

In a dynamic and globalised world of today, especially in commercial disputes, parties seek more control over outcomes, and best practice dictates that arbitral awards need to be respected, except there are valid and reasoned grounds of challenge. I also think that the courts in Nigeria can adopt the practice in England where they are quite hesitant to overturn an arbitral award on grounds which are seemingly coated as meritorious but purely devised to frustrate the successful party and prolong matters. On the international level, this problem has been addressed under the New York Convention on Enforcement of Foreign Arbitral Awards.

You  are licenced to practice law in Nigeria and the UK. Given your experience in both jurisdictions, what would you say are the major disparities and what can Nigeria learn from the UK,  where it inherited the profession from?

I think there are many good comparable similarities between the legal professions in Nigeria and the UK. I also think that it may be a bit unfair to compare Nigeria with the UK in terms of the general administration of justice. Nigeria is a developing country and the UK has arguably one of the most advanced and developed legal professions. Whereas you have barristers on the one hand and solicitors on the other, the legal professional seems to thrive due to the high standard of practice demonstrated by practitioners. Regulation of Barristers by the Bar Council and Solictors by the Law Society and the Solicitors Regulation Authority is very strict. Indeed, the era of technicality is gone.

Lawyers should as a matter of professional conduct, desist from encouraging clients to file or defend claims that are lacking in merit. I think that maintaining professional integrity of the individual lawyer and that of the general legal profession is fundamental. In England, the profession has been assisted by the use of pre-action protocols which are strictly adhered to by both sides.

Also, Judges are able to use advancement in technology to ensure effective and judicious dispensation of justice. One area where in my view I think the profession in Nigeria can also greatly improve is to encourage many senior lawyers and some of the leading practitioners to take roles on the bench, even if part time. In England, many QCs are judges in various capacities and I think that can also improve standards and advancement of the law.

Your firm Mitchell Simmonds Solicitors is putting together a conference on arbitration in September. What are the details and how can Nigerian lawyers and arbitrators benefit from it?

We are putting the conference together due to the rapid foreign direct investment, FDI coming into Nigeria and West Africa as a region. The conference titled London International Commercial Arbitration covers topical themes as international trade, oil and gas, infrastructure projects, transport (maritime and aviation) and investment treaty arbitration.

It is holding at London Hilton, Canary Wharf, London from September 4- 6, 2013. There are enormous practical benefits for Nigerian lawyers, arbitrators, government advisers, members of the judiciary, government executives and interested participants involved in international trade. We shall provide seminars, lecture materials and certificates of attendance.

We have leading practitioners in international commercial arbitration who will discuss English Arbitration law, and other domestic and international arbitration rules encountered in a typical London arbitration. We will provide practical tips on the various themes encountered in a London international arbitration.

The speakers include, Nicholas Chambers QC,  a retired mercantile judge who now practices exclusively as an arbitrator and mediator; Harry Matovu QC of Brick Court Chambers; Paul  Bugden  of Bugden & Co Solicitors, solicitor since 1981 and author of Goods in Transit; Mr  Olumide Sofowora, who will share his experience on arbitration in Nigeria, and my humble self.