The Nigeria Institute of Chartered Arbitrators has recommended the establishment of specialized commercial courts populated by appropriately trained judges who are equipped with a fit-for-purpose functional digital court recording and operating system.
The Institute said this will go a long way to alleviating the delays encountered in the process of enforcement of arbitral awards in the Nigerian judicial system.
In a communique issued at the end of its annual conference and Investiture, the Institute said the future of Arbitration and the future of the world is remote, decentralised and digital, saying this means there is a fusion for in person and virtual experience referred to as a hybrid and that is the future of Arbitration proceedings.
The communique which was signed by the Institute’s Registrar/Chief Executive Officer, Shola Oshodi-John, also recommended that the right of appeal in arbitration cases [especially in enforcement of awards] should be restricted in the same way that consent judgements require the leave of the court before an appeal can be filed against it.
Oshodi-John emphasized that in considering the application for leave to appeal against a decision to enforce an award, the courts can exercise their discretion and thereby sieve out needless appeals.
“This exercise will promote the overall objective of promoting arbitration by holding parties to their agreement to be bound by the arbitration award.
“It is recognised that restricting the right of appeal as recommended will require legislative reform in the form of a constitutional review and/or a review of the applicable law and rules but it is expedient for the development or arbitration and investor (both domestic and international) confidence in the Nigerian economy,” the communique stated.
She said the rules applicable to arbitration in Nigeria needs to pay attention to digital evidence itself because when platforms for commercial activity changes and everything literally becomes digital, it would shape the future.
According to the communique from this point on, evidence and all that comes to the arbitration platform will change such as how to gather evidence, preserve evidence and present evidence.
The communique reads in part, “Some advantages of virtual arbitration/ADR includes fast, flexible and cost effective. As many countries and business grapple with the harsh economic realities occasioned by the devastating effect of covid 19 on the economy, virtual arbitration/adr provides a versatile solution in the resolution of disputes.
“The African Continental Free Trade Area Agreement provides another opportunity and huge prospect for arbitration and other adr practitioners to take the centre stage and ensure dispute settlement among state parties are resolved with efficient, rule based transparent approach and promoting virtual proceeding is definitely the way to go despite the complexities of such cases.”
The conference which is the first Hybrid conference in the history of the institute, themed: Disruption and The New Normal in Arbitration/ADR- A Way Forward.
The hybrid conference which has attracted over 200 delegates physically and over 100 delegates online with about 50 speakers from all over the world sought to, amongst other things, propose a viable way forward in harnessing the benefits of the new normal for the arbitration and ADR community, with particular focus on the challenges of the African continent.
The Registra said abitrators need to develop expertise areas and the necessary skills involved such as developing technology skills, business development skills and project development.
She said as an arbitrator advocate, young practitioners need to be proactive when drafting agreements and be deliberate to insert arbitration clauses in such agreements.
“Young practitioners are also advised to maintain a good relationship with previous employers , learn the process and give oneself the time to grow. They need to be involved in personal branding with a view to developing career prospects as an arbitrator. In addition taking up small responsibilities before aspiring for bigger ones and project oneself as a professional.
“On how to build a career in arbitration, an arbitrator must be informed and stay informed. Information is an asset in the school of wisdom, develop oneself and be aware of happenings/ongoings in the arbitration space. They should know the duties of an arbitrators, consider specializing, they should actively connect, network and build their network as connecting with other arbitration practitioners as a strategy to consider in maintaining visibility,” She stated in the communique.
Importantly, she said a comprehensive cybersecurity and data protection protocol is important for the proper use of Online Dispute Resolution, saying parties must agree on what will be done with the data used during and after the arbitration proceedings.