• Monday, April 22, 2024
businessday logo

BusinessDay

Why effective arbitration helps businesses thrive – Okoro, legal expert

20240328_223612_0000

Okechukwu Okoro, deputy managing partner at G. Elias, a Nigerian business law firm, speaks with Temitayo Ayetoto-Oladehinde on the importance of arbitration in resolving commercial disputes, and the firm’s commitment to equip stakeholders with the knowledge and best practices in arbitration.

There is a notion that arbitration in Nigeria needs to improve. What role do you think international institutions like the London Court of International Arbitration (LCIA) can play in supporting it?

International arbitration institutions such as the LCIA have over the years played a huge role in supporting the development of arbitration in Nigeria.

In addition to the role played so far by the LCIA in fostering arbitration in Nigeria, the LCIA should consider organizing more training and capacity-building programs for Nigerian lawyers, arbitrators, and other enthusiasts, this will help practitioners develop the necessary skills and expertise in international arbitration practices.

There is a need to also develop arbitration facilities and infrastructure in Nigeria, this will include investment in venues, technology, and expertise within Nigeria and Africa. The Road Show is one of the several initiatives of the LCIA aimed at supporting the growth of arbitration in Africa.

Read also: The relationship between Arbitration and Courts

The government enacted a new Arbitration and Mediation Act last year. How has this act improved the arbitration in Nigeria?

The newly enacted Arbitration and Mediation Act, of 2023 holds the potential to transform the arbitration landscape in Nigeria. Most of the shortcomings in the old Arbitration and Conciliation Act which was enacted in 1990 have been addressed and improved upon in the 2023 Arbitration and Mediation Act.

With the 2023 Act, Nigeria becomes the third country, joining Hong Kong and Singapore, to explicitly permit third-party funding, thereby enhancing the access of corporations to justice.

The Act contains innovative provisions such as the appointment of an emergency arbitrator, the creation of an “Award Review Tribunal” to act as a second arbitral tribunal to review arbitral awards, the introduction of the powers of an arbitral tribunal to grant interim measures of protection and order security for costs, consolidation of arbitration proceedings and joinder of parties.

Notably, the 2023 Act introduces provisions for mediation in place of conciliation as we have under the old Act modernizes the arbitration framework, and strengthens the enforcement mechanisms. With the new regime, we expect a more efficient, reliable, and attractive arbitration environment in Nigeria.

G. Elias recently hosted the LCIA West Africa Road Show 2024 in Lagos Nigeria. Tell us what informed the decision?

As one of Nigeria’s leading business law firms with a strong arbitration practice, we recognise the importance of arbitration in resolving commercial disputes. With LCIA’s position as a leading international arbitration institution, we are very happy to be part of and co-host our first Roadshow in Nigeria.

The LCIA Roadshow offered an opportunity for G. Elias to contribute to showcasing arbitration from an African perspective. It also provides a platform to showcase LCIA’s world-class arbitration services and how this can be utilised in resolving complex and high-value disputes in Nigeria and Africa across Africa.

How does this event align with G.Elias’ goals and commitment to international arbitration?

At G. Elias, we are committed to meeting and exceeding clients’ requirements. As a business law firm, we recognise that disputes are unavoidable in business relations, and as such, an efficient and effective dispute resolution mechanism is essential for businesses to thrive. Hosting the LCIA West Africa Road Show is a way of contributing to the broader discourse on arbitration as the preferred means of dispute resolution for businesses in Nigeria and internationally.

The G. Elias disputes and arbitration workgroup which comprises over 20 lawyers with two senior advocates of Nigeria (the equivalent of the King’s Counsel in the UK), is ranked tier-one by the leading international directory of lawyers. International arbitration has been at the core of our firm’s work from our earliest days. The LCIA Road Show further underscores G. Elias’ commitment to the growth of arbitration as the preferred dispute resolution forum in Nigeria.

In addition, by bringing together stakeholders from across various sectors and members of the LCIA African Users Council, G. Elias reinforces its position as a thought leader in both domestic and international arbitration. The show enables us as a firm to forge tighter bonds with the LCIA and other arbitration experts from Europe and across Africa.

The panel discussion highlighted the importance of leveraging technology in arbitration while recognising cybersecurity risks. What specific concerns do you picture around technology use in Nigerian arbitration and how can they be addressed?

The transition from traditional arbitration hearings to the incorporation of technology in Nigerian arbitration has undeniably brought about significant enhancements in efficiency and cost reduction. Despite the myriad benefits, there are legitimate concerns arising from the use of technology in the Nigerian arbitration landscape.

Cybersecurity and data privacy have emerged as pivotal considerations in recent times. Commercial arbitrations routinely involve sensitive information not publicly available. Given the diverse participants with varying levels of information technology (IT) resources and sophistication, it becomes imperative for each party involved to take reasonable measures to mitigate unauthorized intrusion in the arbitral process.

Proactively addressing cybersecurity and personal data protection at an early stage, preferably during the initial case management conference, is crucial. Parties and tribunals should document the ‘technical and organizational measures’ in a written record, typically in the form of a procedural order or protocol that can be amended as circumstances evolve.

Another significant challenge arises from the differing levels of technological literacy among participants, potentially hindering the effective utilisation of technology in Nigerian arbitration. One way to address this is to conduct training, where necessary, to familiarize the participants with the technology that will be employed for the arbitral proceeding. These tutorial sessions, scheduled by the tribunal or arbitral institution, would serve to bridge the technological literacy gap.

Addressing these concerns should be a continual effort and will require a collaborative effort among stakeholders as there will be new challenges.

Digital Economy Initiative for Africa aims to ensure that every individual, business, and government in Africa will be digitally enabled by 2030. What role do you see arbitration playing in resolving commercial disputes arising from Africa’s growing digital economy?

The Digital Economy Initiative for Africa underscores the continent’s commitment to harnessing technology for economic growth. As with every human relationship, as the digital economy in Africa continues to thrive amidst operations in rapidly expanding competitive markets and evolving government regulations, disputes are bound to arise. In this context, arbitration comes in handy as an efficient means for resolving these disputes.

Arbitration can significantly contribute to the resolution of commercial disputes within Africa’s burgeoning digital economy by providing a neutral and efficient platform. This is particularly essential for addressing disputes of cross-border nature, a common characteristic of the digital economy, offering a preferable alternative to litigation in national courts.

Moreover, the confidential nature of arbitration has become increasingly appealing to parties engaged in sensitive digital transactions. Arbitration provides a level of privacy that may not be guaranteed in national courts, playing a crucial role in safeguarding confidential proprietary information, trade secrets, and business strategies, especially for technology-based companies.

The flexibility of arbitration proceedings, allows parties to tailor procedures to their specific needs, combined with the ability to expedite proceedings, aligns well with the dynamic nature of the digital economy. Additionally, the enforceability of arbitral awards across borders, facilitated by the New York Convention, enhances the attractiveness of arbitration, considering the international nature of most business transactions within the digital economy.

What specific actions is G. Elias taking to support the improvement of effective and efficient arbitration in Nigeria?

To support and promote the improvement of arbitration in Nigeria, we have over the years sponsored workshops, seminars, and training sessions for legal professionals and stakeholders to enhance their knowledge and skills in arbitration. For example, over the years, we have been proud sponsors of several ICC arbitration events in Nigeria.

Also, we have been conducting and publishing research on emerging trends, concepts, and case laws in arbitration, with the aim of providing valuable insights to the arbitration community in Nigeria. In the past years, we have among others, contributed to the Global Arbitration Review (GAR), and just recently contributed to the Nigerian Chapter of the 16th edition of the Dispute Resolution Review, published by Lexology, with other experts from 26 jurisdictions.

Furthermore, as part of our practice, we consistently provide advisory services to clients, guiding them on best practices for incorporating arbitration clauses into contracts. We aim to not only minimize potential disputes but also to foster the efficient resolution of any issues that may arise.

What is your strategic outlook for arbitration in Nigeria and your plans for more collaborations like this as an organisation?

As a progressive law firm, we keenly recognize the escalating preference for arbitration as a preferred method for resolving commercial disputes, attributing this trend to the distinct advantages it holds over traditional litigation. To meet the increasing demand for arbitration services, G Elias is poised to invest more in capacity-building initiatives. This includes organizing workshops, seminars, and training programs to equip stakeholders with the knowledge and best practices in arbitration.

As part of our commitment to providing specialized legal services, G.Elias is focused on developing industry-specific expertise in arbitration, coupled with understanding the unique challenges and nuances of each industry.

Building on our recent collaboration with the LCIA, we aspire to forge additional partnerships with key arbitral institutions both global and local, such as LACIAC and LCA. This strategic approach aims to foster collaboration on training programs and joint initiatives, contributing to the growth and development of arbitration within the country.

The international partnership is geared towards facilitating cross-border collaboration, exchanging best practices, and providing exposure to diverse perspectives within the field of arbitration.