By Paul Idornigie

Following the appointment of former Director-General of the Nigerian Institute of Advanced Legal Studies, NIALS, Prof. Epiphany Azinge, SAN, as a member of the Commonwealth Secretariat Arbitral Tribunal, CSAT, the head of the department of Commercial Law of the Institute, Prof. Paul Obo Idornigie examines the significance of the appointment, its jurisdiction and the procedures for the appointment of of the members of CSAT.

*Prof. Epiphany Azinge, SAN

This write-up is meant to situate the appointment of Professor Azinge, SAN as a member of the CSAT.  In this context, to underscore the significance of this appointment and the honour done to Professor Azinge, SAN and Nigeria, we shall examine the jurisdiction of the CSAT, the procedure for the appointment of members of the CSAT, the procedure for conducting the arbitral proceedings of the CSAT and the Rules.   We shall also examine the applicable law.

The Commonwealth, established in 1965, is an intergovernmental organization of 53 member states that were mostly territories of the former British Empire.  It is a voluntary association of now independent states.  The states are in the following regions:  Africa, Asia, Caribbean and  Americas,  Europe and the Pacific and are diverse – they are among the world’s largest, smallest, richest and poorest countries.

Thirty-one of the members are classified as small states – countries with a population size of 1.5 million people or less and larger states that share similar characteristics with them.  All members subscribe to the Commonwealth values and principles outlined in The Commonwealth Charter.  The African Region has the highest number of states followed by the Caribbean and Americas.

The Commonwealth Secretariat Arbitral Tribunal was established by the Commonwealth Governments vide Article I of  the Statute of the Commonwealth Secretariat Arbitral Tribunal.  The Statute was adopted on July 1, 1995 and amended by the Commonwealth Governments on 24 June, 1999, 18 February, 2004, 14 May, 2005 and 16 May, 2007.

Article II of the Statute provides for the jurisdiction of the CSAT.  Essentially the CSAT has jurisdiction to hear and determine any application brought by:

(a)  a member of staff of the Commonwealth Secretariat; (b)  The Commonwealth Secretariat;

(c)  any other person who enters into a contract with the Commonwealth Secretariat; which alleges the non-observance of a contract in writing with the Commonwealth Secretariat and includes in relation to a contract of service the non-observance of the contract of employment or terms of appointment of such member of staff, and in relation to a contract for services the non-observance of the terms of the contract.

The CSAT also has jurisdiction to hear and determine an application involving an international or intergovernmental Commonwealth body or organization which meets the requirements set out in Annex A to the Statute and which has addressed to the Commonwealth Secretary General a declaration recognizing, in accordance with its constitution or internal administrative arrangements, the exclusive jurisdiction of the CSAT, as well as its Rules of Procedures and brought by:

(a)  a member of staff of that international or intergovernmental Commonwealth body or organization;

(b)  that international or intergovernmental Commonwealth body or organization;aGovernment in the Region(s) concerned, the Commonwealth Secretariat Staff Association and the Commonwealth legal fraternity and invites nominations.  At the end of the specified time period, the Commonwealth Secretariat compiles a list of the nominees proposed by Member Governments and circulates the list to Member Governments for their consideration and Commonwealth Secretariat Staff Association for its information.

Member Governments then meet to select the President or member as the case may be.  Member Governments carry out  the selection on a regionally representative basis taking into account theneed for continuity and the maintenance of an appropriate gender balance.  In selecting or re-selecting members of the CSAT, Member Governments may take into account any views expressed by the Commonwealth Secretary General and the Commonwealth Secretariat Staff Association.

The Commonwealth Secretary formally appoints the President or Member as the case may be to serve a period not exceeding four nears in the first instance.  Members are eligible for re-appointment for another term of four years only. This is also provided for in paragraph 4 of Article IV. Article IV of the Statute provides that the CSAT shall consist of eight members who shall be nationals of Commonwealth Member States and that no two members may be nationals of the same member State.  Members of the CSAT shall be of high moral character and must:

1. a) have held, hold or be qualified to hold high judicial office in a Commonwealth country; or
2. b) bejurisconsults of recognized competence with experience as such for a period of not less than ten years.

This is the process that produced Professor Azinge, SAN.  Appointment to the Tribunal is a great honour.  Thus Members are recognized as persons of high moral character who currently hold or have held high judicial office in a Commonwealth country or who are jurisconsults with at least 10 years experience.

According to the provisions of paragraph 5 of Article IV of the Statute, the Tribunal hearing an application shall be composed of three members empanelled by the President.  Unless the President decides otherwise, he or she shall be a member of the panel and shall preside over the proceedings.  In the absence of the President, the panel shall decide who shall preside.

A member of the CSAT has security of tenure and shall remain in office until the end of his/her term of appointment unless the member resigns or dies.  A member may only be removed on the ground of manifest unsuitability or inability to perform the duties of a member of the CSAT following a recommendation of the majority of the other members of the CSAT and approved by Member Governments.

In terms of procedure, this is provided in Article VI of the Statute.  Accordingly, the CSAT has drawn up the Procedure for Commencing Proceedings before the Tribunal dealing with time limits, form of application, applicable law, application for oral hearing, costs, review of judgments and application by a non-staff member.   The CSAT has also promulgated Rules dated 1 July, 2008.  The Rules deal with the Organization of the CSAT, Sessions, Proceedings, Remand of a Case, Intervention and Miscellaneous Matters.   Decision-making is by a majority of the members of the panel which heard the case and the panel states the reasons for its judgment.

According to the provisions of paragraph 5 of Article IX, the judgment of the CSAT is final and binding on the parties and shall not be subject to appeal.  However, there is provision for revision or review under paragraphs 5-12 of Article XI.

Thus a party to a case in which judgment has been delivered who challenges the judgment on the ground that the CSAT has exceeded or failed to exercise its jurisdiction or competence, or has erred on a question of fact or law or both, or that there has been a fundamental error in procedure which has resulted in a failure of justice or that the CSAT has acted reasonably having regard to the material placed before it, may apply to the CSAT, within a period of 60 days after the judgment was delivered, for a review of the judgment.

A panel of 5 members who did not sit on the initial panel that delivered the judgment in question,  is usually constituted by the President to sit as a Review Board to review the judgment.  The Review Board may affirm or rescind in whole or in part the judgment of the panel which heard the application.

Considering the membership of the Commonwealth, the CSAT is a very powerful organ for resolving disputes arising from contract of service and contract for services.  The CSAT is not an organ for resolving commercial disputes but its significance lies in the standing of the 53-member strong Commonwealth in the Regions of Africa, Asia, Europe, Caribbean and Americas and the Pacific.

It is an administrative tribunal like the International Labour Organization Administrative Tribunal (ILOAT), United Nations Dispute Tribunal (UNDT) and United Nations Administrative Tribunal (UNAT). Similarly, under the provisions of the UK International Organizations Act, 2005, the President and Members of the CSAT enjoy diplomatic immunity and privileges.

What is the law governing the jurisdiction of the CSAT in relation to contract of service?   Paragraph 1 of Article XII of the Statute provides that the CSAT is bound by the principles of international administrative law which shall apply to the exclusion of the national laws of individual member states.  In all other cases, the CSAT shall apply the law specified in the contract.  Failing that, it shall apply the law most closely connected with the contract in question.

The Commonwealth Secretariat Act, 1966 granted diplomatic immunity to the Commonwealth but was not seen as extending to the CSAT. The 1966 Act was interpreted by English courts as allowing the courts to exercise supervisory jurisdiction under the Arbitration Act, 1996 over the CSAT.  However with the passage of the International Organizations Act, 2005, CSAT now has the same legal immunity as the Commonwealth Secretariat itself thus guaranteeing independence of the English Courts.

Professor Azinge, SAN has an intimidating profile.He was born on the 13th day November,  1957 in Aba, Abia State although he hails from Asaba, Oshimili South L.G.A of Delta State. He attended St. Patricks College, Asaba between 1970 and 1975 and then proceeded to the University of Lagos in 1976 where he obtained a degree of Bachelor of Laws with a Second Class Upper Division.

He was called to the Nigerian Bar in 1980 and proceeded to the University of London for his LL.M degree specialising in Comparative Constitutional Law and Shipping Law in 1983 and completed his PhD in 1986 writing his doctoral thesis on “Electoral Laws in Nigeria”.   Professor Azinge, SAN began his academic career at the University of Benin in 1981 where he taught  several courses including the Nigerian Legal System, Legal Process, Jurisprudence, Constitutional Law, Labour Law,  Public International Law and Administrative Law.

He also taught Information Technology Law and Law of Taxation at the University of Abuja. To demonstrate his extreme passion for education he also taught the Nigerian Legal System at the Nassarawa State University free of charge.  At the University of Benin, he held several positions in academics and administration.   Professor Azinge, SAN was appointed Special Assistant   to the Honourable Attorney General of the Federation and Minister of Justice (HAGF) where he served from 1991 to 1997.

During that term, he contributed to many landmark legal developments that led to the promulgation of several enactments including the Banks and Other Financial Institutions Act, Failed Banks Act, Advanced Fee Fraud Act, Money Laundering Act and Nigerian Drug Law Enforcement Agency Act.  He was a Member, Nigerian Bar Association (NBA) Section on Legal Practice (2004 -2008); Member, NBA Continuing Legal Education Committee (2003 -2006); Chairman, NBA, Section on Business Law and its Sub Committee on Sports and Entertainment.  He was elevated to the status of a Senior Advocate of Nigeria in 2006.

Professor Azinge, SAN has published extensively in diverse areas in local and international journals and also editor of several books.    In  May 2009, he was appointed  the 5th Director General of the Nigerian Institute of Advanced Legal Studies where he  demonstrated outstanding passion for legal scholarship and education and edited over sixty three (63) books and  journals.  Outside his academic career, he is actively involved in community development.

He is the Founder of The Sojourners Medicate Foundation, which he personally funds to help accident victims on the highway as well as award of scholarships to indigent Nigerians.  He is a Member of the Nigerian Bar Association, International Bar Association and Chartered Institute of Arbitrators.  In recognition of his academic and administrative achievements, he was awarded honorary LLD in 2013 by the Commonwealth University, Belize and    National Honour  – Officer of the Order of the Niger (OON) in 2014 by the Federal Government of Nigeria. Professor Azinge is happily married to Dr (Mrs) Valerie Azinge and they are blessed with four children.

Professor Paul Idornigie is a professor of Arbitration and Alternative Disputes Resolution (ADR), Nigerian Institute of Advanced Legal Studies, Abuja.