by Legalnaija | Feb 23, 2021 | Uncategorized
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As law firms and lawyers directly communicate with the communities they serve, social media becomes a natural way to acquire new clients and establish your practice as a thought leader in your area of expertise.
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by Legalnaija | Feb 18, 2021 | Uncategorized
In establishing any organizational endeavor, an employment contract must be
drawn up. In Nigeria, the employment relationship is governed primarily by the
sources of employment laws in the country. A proper understanding of the laws
that govern an employment relationship and adherence to laws that guide
employees’ rights and employers’obligations, can protect the company from
serious human rights violations.
This article provides a guide to laws governing the employment relationship
in Nigeria, from the sources of the law, the scope of the law, to the tenets of
a typical employment contract.
There are two(2) broad categories of employees in Nigeria, namely:
“Workers”, defined under the Labour Act as those “who are
generally employees who perform manual labour or clerical work”; and
“Employees”, who perform administrative, executive, technical or
professional functions (referred to as “Non-workers”).
THE SOURCES OF EMPLOYMENT LAW IN
The sources of employment law in Nigeria are:
Constitution of the Federal Republic of Nigeria 1999 (as amended), referred to
as “the Constitution”.
Labour Act Chapter L1, Laws of the Federation of Nigeria 2004 (“Labour Act”),
which prescribes the minimum terms and conditions for employment for workers as defined above. As stipulated
by the Labour act of Nigeria, the details of an employment relationship between
workers and employers should be stipulated in a contract. The Nigerian Labour
Law provides a detailed look into the rights, conditions, minimum wage and many
other tenets set by the Nigerian Government. The current version of the act was
enacted in 2004.
Federal laws enacted by the National Assembly (Nigeria’s national legislative
houses) and the State laws enacted by the House of Assembly (the State
legislative authority) of each state, that relate to labour and employment,
pension and workplace compensation, including the following:
for the Release of Staff in the Nigeria Oil and Gas Industry, 2019.
Compensation Act 2010
Act FI, LFN 2004
Training Fund Chapter 19, LFN 2004 (as amended)
Health Insurance Scheme Act, Chapter N45, LFN 2004
Oil and Gas Industry Content Development Act 2010
Reform Act 2014
Income Tax Act P8, LFN 2004 as amended by the Trade Union (Amendment) Act 2011
Disputes Act, Chapter T8, LFN 2004
Unions Act, Chapter T14, LFN 2004 as amended by the Trade Union (Amendment) Act
Data Protection Regulation 2019 issued by the National Information Technology
of the Nigeria courts – case law, and
conventions, treaties and protocols relating to labour, employment, workplace,
industrial relations or matters that connect, which have been ratified by
SCOPE AND APPLICATION OF THE SOURCES
OF LABOUR LAW
Act, which is limited in its scope of application as it regulates only the
employment of workers as defined above.
Constitution, the NICN Act, the Trade Union Act and the Personal Income Tax Act
apply to all categories of employees, with some exceptions.
Pension Reform Act 2014 applies to all employees in the private sector, other
than judges, members of the armed forces and the intelligent and secret
Employees Cooperation Act applies to all employees other than members of the armed
forces (although it applies to members of the armed forces employed in a
Industrial Training Fund Act applies to every employer in Nigeria which employs
more than 5 persons, or which employs fewer than 5 persons, but has an annual
turnover of up to 50 million naira.
National Health Insurance Scheme Act applies to employers which have a minimum
of 10 employees.
Immigration Act 2015 applies to employers which employ foreign nationals and to
TENETS IN AN EMPLOYEE CONTRACT
name of the employer and the undertaking where the employee is employed;
name and address of the worker;
date of engagement;
nature of employment;
contract is for a fixed term, expiration date should be stated;
period of notice for termination;
rates of wages and method of calculation;
manner and periodicity of payment of wages;
and conditions relating to hours of work, holidays and holiday pay, incapacity
for work due to sickness or injury including any provisions for sick pay; and
10. Any special conditions of the contract.
*Special conditions include
Provision of Transport, Annual holidays, Collective Agreements operative in the
Industry or sector and other requirements as the employer may deem fit or as
the employer’s duties may require.
TERMINATING THE EMPLOYMENT CONTRACT
It is required that employers be given notice of termination of their
employment or salary in lieu of such notice.
minimum notice period for workers as
defined above in the Labour Act are as follows:
day, if the length of the service is up to 3 months.
week, if the length of service is up to 2 years.
weeks, if the length of service is up to 5 years.
month, if the length of the service is 5 years or more.
agreeable for parties to agree to longer notice periods in their contracts of
as defined above, the applicable notice period is determined by the terms of
their respective contracts of employment.
Oluchi Atoyebi (Mrs.)
Mrs. Oluchi Lynda Atoyebi, is the Principal Partner
and CEO of Eclat Human Resources Consulting Limited. She is a seasoned human
resource executive with several years of progressive experience in developing
and executing comprehensive management strategies and structures across
industries. She has achieved great results through using a people-first system.
Mrs Oluchi Lynda Atoyebi has her certifications in Human Resource Management under
the institutes of Chartered Institute of Management (CIPM) an MBA in Human
Resource Management from the prestigious Nile University of Nigeria with her
first degree in Political Science from the esteemed Amadu Bello University
(ABU), she has held several executive and consulting positions and she is
currently the Human Resource Director of Omaplex Law Firm, the fastest growing
and pacesetting law firm in Nigeria.
With several professional certifications in HR and
Etiquette, Mrs. Oluchi Atoyebi is driven by the passion to impact the
lives of people positively by helping to build the capacity to become
employable locally and internationally.
This passion led to the establishment of Eclat Human
Resources Consulting Limited which is focused
on enabling individuals and corporate bodies achieve their desired outcome
through the provision of workable systems, structures, and people.
by Legalnaija | Feb 16, 2021 | Uncategorized
A Gospel song writer says and I quote “What do we do when we don’t know what to do? Where do we run to when we don’t know where to go? And what do we say when we don’t know what to say?” I must confess that I don’t know what to say about the death of Chief Hon. Olubunmi Olugbade. I have been inundated with calls from friends and colleagues wondering whether the news of his death is true and how. Even though I do not know what to say, it has become inevitable for me to say something in his honour.
Let me start by saying that nobody no matter how powerful can add one second to his life. Secondly, I also recognise as a believer that there is no accident in predestination. Hence, the scripture says “that there is a time to be born and there is a time to die.” The timing of these two great events of life is beyond the knowledge and comprehension of any man. With this understanding, no one can query God. “Kabio osi!”
Hon. Olubunmi Olugbade died exactly a week ago from today, February 9th, 2021 after a protracted illness. He was aged 61. Hon. Olugbade’s death is much more painful to me because I know that he carried the sole responsibility of looking after his six (6) children, his wife having died earlier in June 2018. Three (3) of these children are under 20. He was on sick bed for several months. I cannot help but to say that death is cruel and that devil, the author of death is wicked but I have a word for the children. That when the devil is at its worst, God is always at His best.
Hon. Olubunmi Olugbade was a good man. A very sincere and loyal friend, highly passionate and committed to relationship. A very brilliant Legal Practitioner and an outstanding Politician in Ekiti State. He was a former Honourable Member of the House of Assembly of Ekiti State where he made a mark. He was a former Chairman of Nigerian Bar Association, Ikere Branch, Ekiti State and a former member of the National Executive Committee of the Nigerian Bar Association. He was a great player and indeed an influencer in the affairs of Egbe Amofin – the South-west caucus of Nigerian Lawyers. A transparent and honest man, highly reliable, unreservably selfless and absolutely committed to any cause that he believed in. I also know as a fact that he was a traditional title holder of Apelua of Ilawe, Ekiti and a great confidant of our traditional ruler back home.
The great legend Chief Obafemi Awolowo once said “All that I want in life is to live for history. To live for history is not to die but to be in the hearts of all men and to be in the hearts of men is to serve them selflessly.” You served your community to the utmost best of your ability and capacity as Chief Apelua of Ilawe Ekiti. You served your State very diligently as a honourable member of the House of Assembly and you served your profession creditably to the level that circumstances and situations permitted the opportunity. Above all, you served God dedicatedly through the platform of the Redeemed Christian Church of God. You therefore shall be in the hearts of so many people, too numerous to count and from different levels of humanity. Therefore, Chief Hon. Olubunmi Olugbade, you are not dead. You have barely transited from mortality to immortality. You are alive in our hearts.
I pray that God Almighty, the father of the fatherless shall rise up mightily for the children and other relatives that you left behind. He shall raise men and women for them and for their needs. When they need you, they shall see God.
Rest in perfect peace!
Dated 16th February, 2021.
DELE ADESINA SAN
PAST GENERAL SECRETARY,
NIGERIAN BAR ASSOCIATION.
by Legalnaija | Feb 16, 2021 | Uncategorized
Finance Bill 2020 has been enacted into law by President Mohammadu Buhari on December 31st 2020, taking
effect from 1st January 2021.
It has made over 80 amendments to 14 different laws following hot on the hills
of the Finance Act 2019 which came into force on 13th January 2020. The Act has made several reforms to
some tax and regulatory laws in the country; it has even included certain
incentives towards the recent COVID-19 pandemic. In this article, we will be
examining the significant changes the Act has made to various laws in Nigeria.
Changes to the Personal Income Tax Act
gross income for PAYE tax purposes. Section
33 (2) of the PITA was substituted with the following:
the purposes of this section, “gross income” means income from all sources less
all non-taxable income, income on which no further tax is payable, tax-exempt
items listed in paragraph (2) of the Sixth Schedule and all allowable business
expenses and capital allowances”.
The idea behind this is to prevent a situation
where non-taxable income (such as reimbursable, employer’s contribution to
pension), franked investment income (such as dividend) and tax-exempt items are
considered in the computation of Consolidated Relief Allowance (CRA).
of life assurance premium tax relief. The newly re-introduced subsection 3 of
shall be allowed a deduction of the annual amount of any premium paid by the
individual during the year preceding the year of assessment toany insurance
company in respect of insurance on his life or the life of his spouse, or of a
contract for a deferred annuity on his own life or the life of his spouse”.
also mandates that Schemes or Societies, to which contribution to a pension,
provident and retirement benefits fund is made to, should be recognized under
the Pension Reform Act.
Finance Act introduced a proviso to Section 37 of PITA which provides that
minimum tax under its section as provided for under the Sixth Schedule to this
Act shall not apply to a person in any year of assessment where such a person
earns the National Minimum Wage or less from such employment.
In other words, any individual earning
National Minimum Wage which is N360,000 annually or less is exempted from
payment of personal income tax.
of the concept of Significant Economic Presence (SEP) to Personal Income Tax.
Changes to the Companies Income Tax Act
tax for companies in respect of returns for years of assessments due between 1st
January 2020 and 31st December 2020 has been reduced from 0.5% to
0.25% of gross turnover less franked investment income.
may prescribe the form of accounts other than audited financial statements form
small and medium companies.
of notice of assessment and objections may be done by courier service, email or
other electronic means as may be directed by the FIRS in a notice. Tax Appeal
Tribunal may conduct its hearing remotely via virtual means, using such
technology or application as may be necessary to ensure fair hearing.
character for the purpose of tax exemption requires an organization or
institution to be registered in accordance with relevant laws in Nigeria and
does not distribute or share its profits in any manner to members or promoters.
companies operating in Free Trade Zones, exemption from taxes is subject to
compliance with tax filing and returns obligation to the FIRS under Section 55
(1) of CITA.
Changes to the Stamp Duties Act
introduction of a one-off levy of N50 known as the Electronic Money Transfer
Levy on electronic Money Transfer Levy on electronic transfers and deposits of
money in the sum of N10, 000 or more to replace the imposition of Stamp Duties
on such transfers. This levy is to be accounted for by the person to whom the
transfer or deposit is made and will be distributed between the Federal and
State Government on a derivation basis of 15% and 85% respectively.
Changes to the Federal Inland Revenue
is a requirement for Federal Inland Revenue Service (FIRS) to utilize adhesive
stamp produced by the Nigerian Postal Service when denoting documents by
for companies operating in the Free Trade Zones to file returns with the FIRS.
General for the Federation to open dedicated accounts for each tax type for the
payment of tax refunds to be administered by the FIRS and fund based on annual
budgets for tax refund for each tax-type as may be approved by the National
Changes to the Value Added Tax Act
of land and buildings, money and securities from the definition of goods and
services for VAT purposes.
non-resident that makes a taxable supply to Nigeria is required to register for
tax and obtain TIN, include VAT on its invoice, and may appoint a
representative in Nigeria for the purpose of its tax obligations.
of commercial airline ticket from VAT, and hire or lease of agricultural
equipment for agricultural purposes.
of land and buildings, money and securities from the definitions of goods and services
for VAT purposes.
Changes to the Capital Gains Tax Act
for loss of office up to N1 million exempted from Capital Gains Tax. Tax due on
excess above N10 million is to be deducted by the payer and remitted within the
time specified under the PAYE Regulations.
Changes to the Tertiary Education Trust
of small companies with less than BN25 million turn-over from payment of
Tertiary Education Tax.
Changes to the Industrial Development
(Income Tax Relief) Act
small or medium company engaged in primary agricultural production may be
granted pioneer status for an initial period of 4 years and an additional 2
years (making 6 years in total).
Customs & Excise Tariff
review of excise duty rates on tractors and motor vehicles for transportation
as well as duty-free importation of aircrafts and its parts for commercial
airlines in Nigeria.
of excise duty on telecommunication charges at a rate to be prescribed in the
law or an order issued by the President.
of import duty on tractors from 35% to 10% and reduction of import levy n cars
from 30% to 5%.
Changes to the Companies and Allied
Unclaimed dividends ina listed company and
unutilized amounts in a dormant bank account outstanding for 6 years or more to
be transferred to the Unclaimed Funds Trust Fund as a special debt to the
Federal Government to be managed by the Debt Management Office and shall be
available to the shareholder or account holder at any time together with the
of operating surplus of a corporation shall be paid to the CRF of the
Federation on a quarterly basis.
Changes due to the COVID -19 Pandemic
of donations made in cash or in kind to the government in respect of any
pandemic or natural disaster to a maximum of 10% of assessable profit after
other allowable donations.
conclusion, based on all the new amendments to the Finance Act, some of which
are actually geared towards meeting the demands of socio-economic changes, it
is advisable that both existing and prospective business owners should seek to
understand the provisions of the Finance Act and the implications on how
business is to be conducted in Nigeria going forward. In other words, since
every new law has its opportunities, as well as its challenges, it is expedient
that interested investors examine critically the impact of the amendments and
make the required adjustments needed, especially as regarding payroll tax
M. 2021, (January 6). President Buhari
Signs the Finance Bill, 2020 into law. Andersen Tax.https://www.mondaq.com/nigeria/financial-services/1023224/president-buhari-signs-the-finance-bill-2020-into-law
W. 2021, January 6. President Signs the Appropriation Bill, 2021 and Finance
Bill, 2020. Proshare.https://www.proshareng.com/news/Budget%20and%20Plans/President-Signs-the-Appropriation-Bill–2021-and-Finance-Bill–2020/55059
Key Changes in the New Finance Act, 2020 You Should Be Aware Of. (2021, January
6). Pwc Nigeria. https://pwcnigeria.typepad.com/tax_matters_nigeria/
Act 2020 and its Impact on Employment Tax. (2021, January 6). Deloitte. https://www2.deloitte.com/ng/en/pages/tax/articles/finance-act-2020-and-its-impact-on-employment-tax.html
by Legalnaija | Feb 8, 2021 | Uncategorized
I chose this caption advisedly, in spite of my understanding of the Central Bank of Nigeria’s letter dated February 5, 2021 prohibiting “dealing in cryptocurrencies or facilitation of payment for cryptocurrency exchanges.” Nevertheless, I will attempt to justify the caption of my intervention by briefly answering the following questions:
Are cryptocurrencies legal tenders within the regulatory purview of the Central Bank of Nigeria (CBN)?
The CBN would seem to have answered this question in their letter dated January 12, 2017 that: “The CBN reiterates that VC such as Bitcoin, Ripples, Monero, Litecoin, Dogecoin, Onecoin, etc and similar products are not legal tenders in Nigeria….”
Since cryptocurrencies are not legal tenders, one wonders where the CBN derives its arrogated powers to regulate cryptocurrency exchanges especially since the provision of section 2 of the CBN Act and section 1 of the Banks and Other Financial Institutions Act clearly define the perimeters of CBN’s powers and functions, yet none contemplates regulation of “exchanges” in the mould of virtual currencies. I stand to be corrected on this interpretation though.
Apparently, since the CBN was in doubt as to the nature of and appropriate regulatory agency for cryptocurrencies, on the 14th day of September, 2020, the Securities and Exchange Commission (SEC) waded in and cleared CBN’s doubts by issuing a statement to the effect that: “The position of the Commission is that virtual crypto assets are securities, unless proven otherwise” https://sec.gov.ng/statement-on-digital-assets-and-their-classification-and-treatment/ Accessed on February 8, 2021.
On regulating cryptocurrencies, SEC went ahead to state in their circular that: “Similarly, all Digital Assets Token Offering (DATOs), Initial Coin Offerings (ICOs), Security Token ICOs and other Blockchain- based offers of digital assets within Nigeria or by Nigerian issuers or sponsors or foreign issuers targeting Nigerian investors, shall be subject to the regulation of the Commission.”
From SEC’s intervention as seen in their circular, it is indubitable that CBN, with respect, jumped the gun by prohibiting “dealing” in an asset over which they do not have regulatory control and such a knee-jerk approach gives an impression of an ill-timed and “unthought out” entry into an unfamiliar terrain since they admitted in their letter of January 12, 2017 that the area is “unregulated.”
Thankfully, SEC’s position that cryptocurrencies are securities finds support in a US decision in United States of America v Maskim Zaslavskiy (17 CR 647) where District Judge Raymond Dearie ruled that cryptocurrency is a security and that it would fall under the United State’s Security Exchange Commission’s purview.
Enough said on this!
Should CBN’s Letter supersede SEC’s statement on cryptocurrencies?
Section 13 of the Investments and Securities Act (ISA) establishes SEC as the apex regulator of securities. Chambers Dictionary defines the word ‘apex’ as “the highest point.” Hence, it is our modest view that CBN should ordinarily steer clear of virtual currencies since it is outside their areas of competence which ought to be in the exclusive preserve of the SEC.
The CBN’s letter was neither referred to as a circular nor a regulation, hence the legal weight to be attached comes into question. Even if it bears such nomenclature, since SEC is designated the apex regulator of securities by the ISA, then their position should always override that of CBN on issues bordering on cryptocurrencies.
Does the CBN’s letter criminalise dealing in cryptocurrencies or facilitation of payment for cryptocurrency exchanges?
Although CBN’s letter expressly prohibits dealing in cryptocurrency, the source (if any) of such powers is suspect. Assuming they even have such imaginary powers, the courts have ruled that, an offence cannot be created by an administrative circular or letter.
For proper context, in Omatseye v Federal Republic of Nigeria (2017) LPELR- 42719 (CA), the Court of Appeal held that:
“Administrative circulars or notices have its place in government but cannot create an offence. The apex Court in the case of Maideribe v. FRN (2013) LPELR-21861(SC) on circulars held thus: ” Such circulars are- “a common form of administrative document by which instructions are disseminated; many such circulars are identified by serial numbers and published and many of them contain general statements of policy… they are therefore of great importance to the public giving much guidance about Governmental organization and the exercise of discretionary powers. In themselves they have no legal effect whatsoever, having no statutory authority. Exhibit “PD16z” is not known to law and therefore cannot create an offence because it was not shown to have been issued under an order, Act, Law or statute. In the absence of statutory authority in the said Exhibit “PD16z” or legal notice it cannot be said to have any legal effect.”
Until the contrary is established, it is our humble position that, the CBN’s letter dated February 5, 2020 remains in the realm of a mere (administrative) letter as admitted by its last paragraph that: “This Letter is with immediate effect” (Emphasis mine). Hence, it cannot create an offence upon which the Nigerian Police can arrest or harass any dealer in cryptocurrency, as one can already imagine.
Can the Police arrest dealers in cryptocurrencies?
As at press time, there is no law that criminalizes dealing in cryptocurrencies in Nigeria to my knowledge as the provisions of section 36(8) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) prohibit prosecution for an act which does not constitute an offence at the time of such act. In interpreting section 36(12) of the Nigerian Constitution, the Court of Appeal held in Ibrahim v Nigerian Army (2015) LPELR- 24596(CA) that:
“The ingredients of section 36(12) of the 1999 Federal Constitution as amended (supra) are as follows: “The offence has to be defined in a written law which term refers to:- (i) An Act of the National Assembly;(ii) A Law of a State House of Assembly;(iii) Any subsidiary legislation; or (iv) Instrument under the provisions of a law. The penalty shall also be prescribed in a written law which term refers to:-(i) An Act of the National Assembly;(ii) A Law of a State; or(iii) Any subsidiary legislation; or(iv) Any instrument under the provisions of a law.”
Applying the foregoing parameters to the CBN’s letter, the bank will have to further explain to Nigerians whether it is intended to be a subsidiary legislation or it provides penalty as required by the Constitution, bearing in mind the meaning of subsidiary legislation and the decision of the Supreme Court’s decision in Comptroller General of Customs v Gusau (2017) LPELR – 42081 (SC) to the effect that, guidelines are not subsidiary legislation, hence there exists no law creating an offence (of dealing in cryptocurrencies) upon which the police can lawfully arrest anyone in Nigeria.
Conclusively, without prejudice to the (right or wrong) economic and socio-political sentiments, whipped up by the CBN in their Press Release of February 7, 2021 justifying the prohibition, it remains this writer’s respectful opinion that the apex bank overstepped its regulatory boundaries by usurping the statutory powers of the Security and Exchange Commission to regulate securities in the mould of cryptocurrencies.
Photo credit – cfo.com
by Legalnaija | Feb 4, 2021 | Uncategorized
NEED FOR DATA PROTECTION IN THE MODERN WORLD
to OECD in 2015, data is seen as the very infrastructure underlying the
modern digital economy.
succeed in the modern economic environment, businesses and technology models
heavily rely on huge amount of data to thrive. Top companies lik
amazon and google, some of the world’s digital economy leaders, are leaders in
the business world due to their access to immense amount of data from their
users which they then apply with their algorithms. it helps keep their market
at a remarkably high level.
questions of who owns the data, who gets access to it and whether data is
something that can be owned in the first place is yet to be settled. In the
same vein, it leaves us with so many questions on intellectual property rights.
there exists bits and pockets of legal frameworks for data, the EU’s General
Data Protection Regulation (GDPR) which came in force in 2018 took centre
stage and replaced most existing data laws, particularly Directives 95/46/EC (the
Data Protection Directive) and 2002/58/EC (the ePrivacy Directive). Other
new regimes like the California Consumer Privacy Act (CCPA) which became
operative on the 1st of January 2020 is also a subject of much
HAS DATA PRIVACY REGULATORY FRAMEWORKS RECOGNISED INTELLECTUAL PROPERTY RIGHTS?
question that keeps arising is, how much does these laws recognise Intellectual
thing that is certain is that IP rights are not expressly spelt out in most
data protection laws and some may even have counter effect on IP. Under the
GDPR for example, right owners wishing to take action against domain name
owners whose domains have infringed their trademarks, design or copyright, will
find it harder to obtain details of a UK domain name owner allegedly infringing
their rights due to the consent provision of the GDPR.
the GDPR does not recognize company rights but just personal rights. The
European Commission (EC) stated that the rules only apply to personal data
about individuals and do not govern data relating to legal entities.
Nigerian data protection regulation (NDPR) also takes a similar approach to
data rights. The NDPR defines a ‘data subject’ as a person who can be
identified directly or indirectly, by reference to an identification number or
to one or more factors specific to his physical, physiological, economic,
cultural or social identity. It also defines personal data as information
relating to an identified or identifiable natural person which may be a name,
address, photo, email address, bank details, posts on social networking
websites, medical information, etc. thus,
the restriction of data subjects to majorly natural persons only, the current
data protection regime has left a huge void regarding intellectual property
TRADE SECRET PROTECTION: ARE THEY ENOUGH?
secrets arguably enjoy the most protection under the current data protection
laws. The Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) sets out standard minimum levels of protection of trade secrets as
Intellectual Property Rights and provides a definition of the information that
can be protected, focusing on these three requirements:
commercial value; and
reasonable steps to keep the
secrets regime in the EU has been recently regulated by Directive (EU)
2016/943 (“Trade Secrets Directive”). As evinced from Recital 10 and
Article 1 of the Trade Secrets Directive, the aim of the Directive is not
to introduce a full EU trade secrets regime, but rather to reach a partial
harmonisation through a minimal standard of protection, leaving room for Member
States to provide for more far-reaching protection.
TRADE SECRETS UNDER THE CALIFORNIA CONSUMER PRIVACY ACT
CCPA particularly provides an interesting cover for trade secrets. Generally,
the CCPA allows California consumers to request that a business disclose the
specific pieces of personal information (PI) the business has collected. The
consumer also may request that the business delete any PI about the consumer
that the business has collected. If a business is able to verify the identity
of the consumer making the CCPA request, it must comply with the request unless
one of the enumerated exceptions applies. Unexcused failure to do so exposes
the business to a civil action by the California Attorney General for
injunctive relief and civil penalties of up to $7,500 for each violation.
question now is, what happens if the personal information covered by the
consumer request includes information considered as trade secret data? Given
the wide meaning of both PI and trade secrets under the CCPA, a conflict in
this regard is inevitable.
the CCPA does not provide a clear-cut safe harbor to address this dilemma, a
potential argument that may support a decision to withhold trade secret data
when responding to a consumer request may arise.
HOW TO DETERMINE THE OWNER OF IP PARTICULARLY IN AI
DRIVEN TECHNOLOGIES THAT RELY ON DATA?
that Artificial Intelligence (AI) is already becoming omnipresent in our
everyday life, the development raises broad and multi-disciplinary policy
questions, including several aspects of intellectual property (IP). Much like
the countries in which they operate, an increasing number of corporations are
convinced that AI will be essential to maintaining a leading position in the
the owner of an IP right in AI driven technologies are quite complicated.
Biometrics, as an AI initiative provides a brilliant case study. The GDPR
includes specific provisions for biometric data. In particular, the GDPR covers
the processing of biometric data for the purpose of uniquely identifying a natural
person. Biometric data is data resulting from specific technical processing
relating to the physical, physiological or behavioural characteristics of a
natural person, which allow or confirm the unique identification of that
natural person, such as facial images or dactyloscopic data.
company that is desirous of collecting the biometric (or other prohibited data)
of an EU citizen, the company must be able to demonstrate that it has met an
exception to the GDPR’s general prohibition. A non-exhaustive list of these
exceptions include: that the EU citizen has given explicit consent for a
specified purpose for the data; that processing the data is essential to
protect the vital interests of the individual and he or she is incapable of
giving consent; or that processing the data is necessary for the purposes of
preventive or occupational medicine, and subject to the conditions and
safeguards referred to in the GDPR.
addition to meeting one of the exceptions, a company must also comply with data
protection requirements and obligations. For example, a company must provide EU
citizens with the right to be forgotten, meaning that an individual shall have
the right to withdraw his or her consent at any time. This can lead to severe
penalties for the company for failure to comply. The question then arises, at
the point where consent was yet to be withdrawn, who owned the intellectual
property right? If it is the company, do they lose that ownership when the data
subject decided they want to be forgotten?
this regard, it could be argued that ownership of IP rights in big AI resides
with the data subjects and only upon certain exceptions can companies use it.
PROPERTY AND ARTIFICIAL INTELLIGENCE: FOCUS ON COPYRIGHTS.
global technology transition brings into question several fundamental IP
concerns. Seeing that most IP laws were written at a time when only natural and
human intelligence were contemplated, AI challenges many traditional IP legal
notions such as originality, copying, author, designer, and inventor among
others. Arguably, when AI systems are engaged to perform creative or other
cognitive tasks, the prevailing humanistic approach to IP is not well suited to
protect the generated results.
look at copyrights for example. Under EU and American copyright law, copyright
protection applies to the expression in any form of a computer program,
provided that the program is original in the sense that it is the author’s own
intellectual creation. In respect of the criteria to be applied in determining
whether a computer program meets the originality requirement, no tests as to
the qualitative or aesthetic merits of the program should be applied.
ideas, methods and principles which underlie any element of a computer program,
including those which underlie its interfaces, are not protected by copyright.
Only expressions of intellectual efforts are protected. In addition, since no
registration is necessary for copyright protection to arise (with varying
exceptions), collection of evidence may sometimes be difficult.
conclusion therefore, from an economic standpoint, the scope of copyright
protection (and other IP protection including trademarks and trade secrets) for
an AI system is insufficient. Seeing that copyright will not protect the
creativity, skill and inventiveness devoted to the development of the
functional concept behind an AI system, it may be recommended not to rely
solely on copyright law and data protection laws. The current data regime
completely ignores this possible insufficiency. These insufficiencies for the
main time are best circumvented via a robust contractual agreement, although it
has its inadequacies, especially when dealing with a large number of data
RIGHTS AND DATABASE RIGHTS: ACHIEVING AN EQUILLIBRIUM BETWEEN DATA RIGHT
PROTECTION AND INTELLECTUAL PROPERTY PROTECTION UNDER NIGERIAN LAWS.
On the back of several reports of privacy
violations against Facebook, the United States Federal Trade Commission imposed
a $5,000,000,000(Five-Billion Dollar) fine on the company in July, 2019.
Earlier in January, 2021, social media giants – Twitter, permanently suspended
the account of Former American President, Donald Trump for inciting violent
protests at the Capitol (the Nation’s legislative building) via his tweets on
What indeed is the nexus between these
narratives? Simply put, the former narrative on the fine imposed on Facebook
encapsulates the importance placed on the need to protect data rights as
contained in databases. The later relays the great extent to which the owner of
an intellectual property can exploit his powers (in this instance, it was
exercised to outlaw a President from social media). Moving forward, it is
without doubt that in several jurisdictions the world over, various laws have
been put in place to uphold various rights and more importantly in this discuss
– data rights and intellectual property rights.
This paper seeks to open a conversation on
the need to ensure that the exercise of database rights by an intellectual
property owner, does not infringe on the data rights of others.
RIGHTS: MEANING AND PROTECTION UNDER THE NIGERIAN COPYRIGHT LAW
Although no Nigerian legislation defines
database rights, in Nigeria, it can be regarded as a literary work eligible for
protection under Section 1, of the
Copyright Act, 2004. For the
purposes of clarity however, the definition of a database under the United
Kingdom’s Copyright and Rights in
Databases Regulations, 1997, may be adopted. Regulation 6 of the Regulation defines a database as ‘a collection
of independent works, data or other materials which are arranged in a
systematic or methodical way, and are individually accessible by electronic or
Therefore, in basic terms, a database right
refers to the intellectual property right accorded to a person in recognition
of the effort put in forming/creating a database.
As earlier stated, these rights are accorded
protection under the Copyright Act of Nigeria. Consequently, the owner of a
database enjoys the protection of the following rights as a copyright owner:
1. Economic rights: These rights aim at
safeguarding the financial interests of a copyright owner by conferment of an
exclusive right to exploit the work commercially. They consequently provide the
Enhance the market value of a business by
leveraging on the goodwill provided by ownership of IP.
A source of earning as they can be
2. Moral rights: These seek to
protect the integrity of the author’s work as it encapsulates the reputation of
a copyright owner. To this end, the law will operate to prevent a copyright
owner’s work from being used in a manner contrary to the owner’s wishes or
without his prior approval.
STRENGTHS OF THE NIGERIAN DATA PROTECTION REGULATION (NDPR), 2019 IN PROTECTING
As earlier established, database
rights under Nigerian law enjoy the benefit of copyright protection which
enable a copyright owner to exploit the benefits therein. However, whilst the
law will recognise and afford protection to the ingenuity of an author
(copyright owner) who has exerted effort in compiling such a database, such a
compilation must be done in a manner that does not infringe on the rights of
others. It is indeed in this regard, that the issue of Nigeria’s data
protection regime comes to fore.
Whilst they exist pockets of industry
specific legislations on data protection in Nigeria, the Nigerian Data Protection Regulation (NDPR), 2019 constitutes
the only comprehensive and holistic piece of data protection in Nigeria. The
regulation principally seeks to ensure that the processing of the data of
Nigerians is carried out lawfully in a manner consistent with the privacy
rights of Nigerians.
Since its coming into force, the NDPR has
strengthened the nation’s data protection framework by ushering in a number of
laudable developments as follows:
Privacy Rights: The NDPR most importantly, has articulated
the privacy rights of Nigerian citizens guaranteed under Section 37 of the 1999 Constitution as amended. In a landmark
decision, the Federal High Court in Abuja, in 2019, affirmed the data privacy
rights of Nigerians and ordered the Nigerian Information Management Commission
to protect the data rights of Nigerians beyond merely having bogus security
policies which it had prior to the suit, failed to implement. [See Incorporated Trustees of Paradigm
Initiative for Information Technology (PIIT) & Sarah Solomon-Eseh v
National Identity Management Commission (NIMC) & Anor)].
the NDPR preserves the data rights of Nigerians by requiring all data
controllers (organisations processing the data of Nigerians) to ensure that in
processing (making use of) the data of Nigerians:
consent must be obtained;
it must be in the interest of the data
subject or in public interest;
the performance of a contract which the data subject is a party to, amongst
2. Commitment to Ensuring Data Protection: The NDPR
also solidifies the commitment of the Nigerian government in ensuring that all
cybercrimes and associated threats linked to breaches in data bases are
addressed. Article 2.6 of the NDPR
places a duty on all data processors to put in place security measures to
protect data which amongst other things include setting up firewalls,
protection of emailing systems and employing data encryption technologies.
Reports indicating that 588 businesses
have filed data audit reports with
the National Information Technology Development Agency (NITDA) as at August, 2020, as opposed to a near zero
compliance level before the
inception of the NDPR is indeed a silver lining in the quest for data protection in Nigeria.
3. Expansion of Nigeria’s Job and Wealth
Nigeria, the National Information and Technology Development Agency (NITDA)
licenses Data Protection Compliance Officers (DPCOs) to not only provide data
audit services, but to provide general training on data compliance which
obviously comes at a cost to data controllers patronizing such DPCOs thereby
fuelling wealth and job creation. In a similar vein, an avenue is created for
the government to generate funds through licensing fees for DPCOs and
applicable fines for breach of data rights.
capturing the wealth and job creation potential available via the NDPR, Isa Pantami, Nigeria’s Minister of
Communications and Digital Economy in
an interview in September, 2020, observed succinctly:
“One of my
greatest sources of joy on the Regulation is its job creation potential. Over
1.5 million businesses and non-governmental organisations would need to file
Data Audit Reports on or before March 15 every year. Each of these reports must
bear a Verification Statement, sign and seal of a licensed DPCO. If each DPCO
provides service for an average of 50 Data Controllers, we would need over
300,000 professionals to meet this need.” [Available
On: Premium Times, ‘The Huge
Prospects of Nigeria’s Data Protection Regulation 2019, By Isa Ali Ibrahim
Pantami’ (Premium Times, 16 April 2019) accessed 7th September
CHALLENGES OF THE NDPR IN PROTECTING DATA RIGHTS
Although, the provisions of the NDPR are
laudable and set the tone for much potential in Nigeria’s efforts at achieving
a world class data protection status in which all data rights are protected,
nonetheless, there exist few challenges:
1. Scope: The NDPR only
guarantees data protection for Nigerians in Nigeria (Article 1.2 NDPR). Consequently, the regulation does not extend
protection to non-residents. In contrast, the General Data Protection
Regulations, GDPR (applicable to countries in the European Union) has
extra-territorial provisions governing such outsourcing needs. See Article 3 of the GDPR.
2. The Status of the NDPR: It has been submitted, that the efficacy of
the provisions of the NDPR is watered down as it is not a legislation.
Consequently, in the event of a conflict between the regulation and statute,
the later shall prevail. For example, the provisions of the Cyber Crimes Act, 2015, on the release
of personal data pursuant to Court orders and statutory fines, will take
precedence over the NDPR. In sharp contrast however, the provisions of the
General Data Protection Regulations (applicable to the European Union) is a
substantive legislation of parliament.
Deterrence Measures: In light
of the serious damage privacy infringement may occasion and the huge profits
earned by infringing companies doing business, it is observed that the penalty
imposed by the regulations should be made weightier. Article 2.10 of the NDPR imposes a fine of 2% on domestic gross
annual revenue or 20 Million Naira, whichever is greater on companies (handling
above 10,000 data subjects) in breach of the regulation. With the combined
values of the top tech companies Facebook, Netflix, Google and Amazon placed at
2.3 trillion dollars in 2018, the 20 Million Naira fine under the NDPR should
be increased to deter violations.
Nigeria’s quest to achieving a compliant data
protection status capable of securing database rights and indeed all other
ancillary intellectual property rights cannot be achieved overnight. Nonetheless, the above issues discussed are
cardinal and must be tackled as a first step:
1. Need to Improve Capacity: It is
germane that NITDA as the principal body for data protection in Nigeria
consolidates on its successes and takes steps to improve further. Whilst the
agency must be applauded for opening investigations into a number of alleged
data breaches, notably breaches by TrueCaller,
Surebet247 and the Lagos Inland Revenue Service, the absence of sanctions
or the non-publicity of same must be addressed. The agency must begin to impose
sanctions on defaulting organisations. The NITDA should take a cue from
countries within the European Union which have imposed a minimum €114,000,000 in fines since the
inception of the GDPR in 2016.
2. Scope of the Act: The
definition of data under the NDPR must be reviewed to explicitly include
non-electronic data. This will ensure
that data not electronically stored is also afforded protection. Such an
amendment must also include an obligation on data controllers to inform data
subjects of data breaches thus affording such subjects the opportunity to take
extra precautionary measures and further ultimately bring the NDPR into
conformity with international best practices on data protection.
3. Increased Licensing Capacity: Lastly,
it is firmly believed that by licensing more competent data compliance
officers, market forces would operate to dictate cost of data audit reports and
associated due diligence on data compliance. This would remedy the effect of
the current regime were high compliance costs currently cripple the efforts of
data controllers at achieving compliance.
4. Passage of the Digital Rights Bill: The
Nigerian Government must take steps in ensuring that the Digital Rights Bill is
passed into law. Following President Buhari’s non-assent to the Bill, the
National Assembly must take the bull by the horn to ensure passage by
addressing the reasons for the President’s decline of assent (for e.g. the
failure to address specific digital rights extensively). The Act, if passed
will not only crystallise the data rights of Nigerians it would also allay all
fears pertaining to the genuineness of Nigeria’s data protection regime.
This Legal content appraises the role of the
intercourse between Data protection and intellectual property rights from a
global and ever evolving purview, while succinctly addressing the need for an
improvement in the Global and Nigeria’s data protection framework with a view
to ultimately ensure that a balance is achieved in the protection of data
rights and database rights.
by: Oyetola Muyiwa Atoyebi, SAN
Oyetola Muyiwa Atoyebi, SAN is a seasoned Intellectual Property and data protection expert with over
a decade’s worth of experience in legal practice and technology. He has
facilitated numerous transactions and given countless legal opinions on Intellectual
property and data protection inclined matters in Nigeria. Against the backdrop
of his stellar expertise, Atoyebi has also facilitated several panel
discussions and engagements on Intellectual Property and data protection.
is the youngest lawyer in Nigeria’s history to be conferred with the highly
coveted rank of a Senior Advocate of Nigeria (SAN). Mr. Atoyebi is also a recipient of countless
awards given in recognition of his sterling contributions to the growth and
development of law and technology.
is the Managing Partner of OMAPLEX Law Firm, an established law firm driven by
technological innovation. As an expert in emerging areas of law practice, he
has core competence in Intellectual property, Data protection, Cyber Security,
Fintech, Robotics and Artificial Intelligence.
by Legalnaija | Feb 4, 2021 | Uncategorized
I was in
my office one fine day when my good friend Mr. B paid me a short
friendly/business visit. While we had our usual chat exchanging pleasantries,
he would take occasional pauses when he spotted anything new and interesting to
show me and as usual I could not but look; as I like gist like that. One of the
interesting topics he showed me was a new Pepsi advert featuring the famous female
rapper Cardi B. In this advert (in summary), the customer at a restaurant/bar
requests for a coke to which the waiter replied, oh we don’t have coke; but is
a Pepsi ok? Cardi B in dismay asks the waiter “what do you mean is a Pepsi
okrrrrr, of course a pepsi is okrrrr.. etc”. While we both found this advert hysterical,
Mr. B’s question quickly turned our entertainment into an academic journey.
with the remnants of laughter “is this legal though?”. Being the lawyer in the
room, I knew I had to give a cogent answer even if this was not a topic that I
had really done any research on. I was able to use my sharp girl common sense
to give a semblance of an answer with plenty English so that I didn’t look
new topic brought back memories of other similar adverts of Pepsi, mentioning Coca-Cola
and using their logos in Pepsi adverts with seeming disregard. Mr. B believed
very strongly that this act had to be illegal in many ways or could at least
lead to some sort of legal liabilities. He also wondered why the Business Giant
Coca Cola have never sued or retaliated in any way or, at least none that we
also brought my mind to the similar and most recent advert play stunt or “bank
wars” on social media between Sterling Bank Nigeria and other banks, where sterling
bank played a subtle card by using logos of other banks to show superiority
while also casting subtle insults, i.e. indicating sluggishness or low performance
of its competitors to which the other banks fired back in their individual
give a brief summary of my answer to the Pepsi-Coca-Cola Saga, (I hadn’t done
any research at the time so don’t judge me) I believed the fact that other
companies don’t engage in what I describe as brand bashing is due to simple advertising
ethic. This opinion was more based on the fact that Coca Cola cannot possibly
be afraid to take Pepsi on in a brand war or legal suit over trademark issues.
This argument helped me get by that day, but I definitely knew that this was
the shallowest of answers and I got away with it by sheer luck.
smartly along, a few weeks after I finally overcame the spirit of
procrastination, I discovered that the issue of Brand Bashing is quite a
serious matter globally and has been dealt with over the years in different
ways regionally, essentially meaning different countries have their own laws
and registers for trade mark and brand protection. There have however been a concerted effort to make
intellectual property and brand protection laws
more uniform through international treaties and international intellectual property
rights systems/platforms and forums such as the 1886 Berne convention, 1996 WIPO
copywrite treaty (WCT), 1883 Paris Convention, TRIPS Agreement
(To be discussed in another Paper). It
should however be noted always that only party countries are bound by such
systems and conventions. Furthermore, the majority of rules created are for the
protection of registered marks and not the economic activities among competing
before going any further, I have to first practice the age long culture of
defining brand bashing.
is defined as ‘any message, the content of which is controlled directly or
indirectly by the advertiser, expressed in any language and communicated in any
medium with the intent to influence their choice, opinion or behavior.’
Brand Bashing on the other hand also known as Comparative or
competitive advertising is therefore any advertising or promotional
technique which directly or
indirectly identifies a competitor, goods or, services offered in order
to claim the superiority of its product over that of the competitor by direct
or indirect comparison..
are generally 2 types of comparative advertising
Direct comparative advertising: this occurs when other
products are mentioned by their name (and not as ‘brand X,’ ‘brand Y,’ etc.)
Indirect comparative advertising: Here no other
brand names are mentioned. The Brand X and Y analogy is used here to contend
that one brand is superior to all or most others.
are generally 2 schools of thought on this issue. One school in favor of the
use of competitive advertising, and the other is against it. Those that are in favor
believe that competitive advertising will have the effect of pushing
manufacturers to improve their products in order to avoid embarrassment from
the public and competitors; while those against argue that consumers may be
duped by unscrupulous advertisers who either fail to present fair and truthful
comparisons, or overload customers with false information.
Whichever direction we may lean in; the fact remains that the use of
comparative advertising has a potential to lead private lawsuits globally as
regulations to control comparative advertising are still in evolutionary stages.
This therefore means that without clear cut rules, there are many legal issues
that may arise out of comparative advertising when advert practitioners get
carried away in search of creative ways to boost their brand. Such legal issues
may include infringement of intellectual property rights, Libel or slander,
passing off of brand logos etc.
such a globally controversial issue it is seen that many regions have developed
similar laws to tackle this matter with national specificity. Nigeria is no
exception to this phenomenon as there are no known laws directly dealing with
the issue of comparative advertising. The closest I got to dealing with these
5 of the Trademarks Act
which generally safeguards the registered brands of trademark holders giving
the right to sue for passing off.
The Nigerian Communication Commission
Guidelines on Advertisement and Promotion (NCCGAP) which
(as the name implies) deals only with communication practitioners. and
provides for fairness in advertising practices among communication
practitioners. It states that “comparative advertisement must not
unfairly disparage, discredit, or attack other products, services,
advertisements or companies, or exaggerate the nature and importance of
But this deals only with communication practitioners
The Federal Competition and Consumer
protects consumers from false misleading or deceptive representation concerning
a material fact.
the Trademarks Act gives the right to sue for passing off, this article touches
on issues that involves also the use of the said brand mark to gain economical
advantage by a competitor who is/are largely at par with one another on the
economic playing field; I’ll easily put this topic on the same line as cyber
bullying but for commercial brands. Sort of like cyber bullying a cyber bully.
established the fact that competitive advertising can become quite messy due to
inadequate guidelines and possible overzealousness and or of advertising
practitioners; the question here is (focusing on the advantages of comparative
advertising) how best can comparative advertising be executed without
attracting a lawsuit. A few general rules for comparative advertising can be
followed. For example, fairness; A balance mut be struck between
competitiveness and minding your business so to say. Fairness as it relates to
comparative advertising means carrying out comparative advertising without
disparaging the products or services of the competing brand. To be
accomplished, certain elements must be observed as a guideline as follows:
The advert must be truthful and verifiable: The facts
stated in the comparative advertising must be factually correct so as not to
deceive or mislead the potential customers. This means that the facts should
not only be true on the face of it, they should be verifiable.
Use of trademarks and logos: the
use of a competitor’s product, logo, or motto is more common in direct
competitive advertising. This makes this form of advertising much bolder and
more dangerous for advertisers as such acts could entitle aggrieved brand
owners to damages for the unauthorized use of their marks. It is therefore
advised that the use
of competitor’s brand name, initials or mark must not be unjustifiable nor
the goodwill attached to the trademark or symbol of another brand be unfairly taken
Products must be similar: goods or services must meet the same needs and
for the same purpose. The yard stick for similarity could be that the
product or service must have one or more material, relevant, verifiable and representative
features, and must be with the same designation of origin in order to stand as
Must not be misleading: The
consumer should not be misled as a result of the comparison being made, whether
about the product advertised or that with which it is compared.
No Unfair disparagement: While
engaging in comparative analysis the advertisers must ensure that their
advertisements observe fairness in competition. By this I mean that the advert
must not unfairly denigrate attack or discredit other products.
An advertiser can say that his goods are better than his
competitors. For example, the advertiser is allowed to glorify his goods as
good, better than all others, or the best in the world, but cannot say the
other goods or product x, y, z are bad. Comparative advertisements are limited
to mere puffs. Any statement indicating that a competitors’ goods are bad may
amount to slander/ defamation of competitors and their goods, which is not
going back to the Pepsi and Coca-Cola saga as well as the bank wars which seem
like brutal advertising strategies defying all my story on fairness being the
fulcrum of comparative advertising, it still leaves the question of how come no
major lawsuits have sprung up from these ongoing advert wars. My personal take
is that the concerned brands have practiced what I call permitted
comparative advertising; by this I mean that either by agreement or
complacency, parties allow the stare up of drama in order to gain joint
publicity. Brilliant don’t you think? There is no such thing as bad publicity
as some wise person said. In these circumstances such advertisements are more
of cooperation and collaborations, encouraging one another to practically go
crazy on each-other’s brands up to whatever limits parties may have set. Publicity
stunts like this have been adopted by many brands in the past and used as tools
to attract public curiosity and popularity in the long run. This tactic I
believe, was used in the bank wars stated above, and if I may say so myself, it
worked like a charm. There can be no legal liabilities where parties strictly
adhere to their agreement on comparative advertising.
by Legalnaija | Feb 1, 2021 | Uncategorized
Privacy and data protection (as a practice area) is relatively nascent and in its developmental stages in Nigeria: the main legislation are inadequate or inelegantly drafted, the regulator is facing legitimacy and capacity challenges, many professionals are few and ill-equipped, industry practitioners a little bit laid back and ultimately, the government is, regrettably, sluggish with its legislative attempts towards birthing a principal legislation for data protection.
From my experience as a privacy litigator, the first issue that confronts an Applicant in Nigerian courts is, whether or not data protection is actionable as a fundamental right to privacy, or they are to be approached as one of those statutory rights litigable under the regular civil procedure as opposed to the sui generis approach under the Fundamental Rights Enforcement Procedure Rules 2009.
Some notable Nigerian academics and legal practitioners have embraced two schools of thought along the lines of their professional convictions and proclivities, while seemingly situating same on their perceived state of the relevant data protection legislation in Nigeria.
Data Protection is not Privacy (First School)
From an academic perspective, Dr. Adekemi Omotubora, a senior lecturer at the University of Lagos appears, with respect, the most vociferous and consistent Nigerian proponent of this school of thought, who doesn’t spare blushes when expressing her belief that data protection should be distinguished and severed from right to privacy. In the wake of issuance of Nigeria Data Protection Regulation in 2019, the learned academic penned an instructive article on “The NITDA Regulations on Data Protection: A Peculiarly Nigerian Approach?” wherein she asserted that:
“The critical point here is that the assumption underlying an objective to safeguard ‘a right to data privacy’ in the Regulation is misguided if not unconstitutional. It is misguided because it shows lack of understanding of the conceptual differences between privacy and data protection. It is unconstitutional because it aims to safeguard a non-existent right to data privacy. Therefore, unless we can argue, presumably ingeniously, that it is possible for the NITDA Regulation to create a right to data privacy, then the entire Regulation could be challenged for its unconstitutionality.”
Again, in March 2020, she co-authored a scholarly paper titled “Next Generation Privacy” published in Routledge Information and Communications Technology Law Journal where she posited that:
“Perhaps to further underline the distinction between the two concepts, the Charter of Fundamental Rights (CFR) created a separate right to data protection in article 8 although the authorities had already proclaimed that protection of personal data must be seen as fundamental to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention….While it remains unclear whether and how a new fundamental right to personal data and a change in nomenclature (from privacy to data protection) would herald a new jurisprudence of data protection, it is clear that the EU law now considers the interchangeable use of privacy for data protection an anomaly.”
From the practicing lawyers’ perspective, the Law Firm of Templars (one of Nigeria’s largest commercial law firms) recently released a publication titled “Enforcing Data Subject Right Under Nigeria’s Data Protection Regulation: The Wrong Way (And the Right Way)” wherein they pitched their tent with this school of thought as follows:
“…we would readily throw our weight behind the FHCN’s decision. The reason is not far-fetched. The FHCN’s reasoning that, a breach of a Data Subject’s rights under the NDPR cannot be remedied by way of an action brought under the FREP Rules aligns with the basis for FREP Rules, as a specialized procedure reserved for enforcement of fundamental rights under Chapter IV of the Constitution or the African Charter… In light of the foregoing backdrop, it may not be out of place to adjust the FREP Rules in a way that would make the Rules readily amenable and flexible to accommodate emerging rights, such as the Data Subject’s rights in the NDPR, that are similar to the rights of citizens specifically provided for in the Constitution. But until such an adjustment, it may be important that originating processes with the reliefs sought in an action brought under the FREP Rules, are carefully couched to avoid being thrown out of court at a preliminary stage of the proceedings. The substantive or principal claim must be in relation to a breach of a fundamental right as contained in Chapter IV of the Constitution or African Charter, while the ancillary claim may be a breach of the provisions of the NDPR. Better still, and perhaps, a better approach, would be to make a claim for breach of the NDPR and NITDA Act a stand- alone proceeding, rather than lumping it together with a fundamental right enforcement action under the FREP Rules. That way, any unnecessary controversy with its attendant risks, can be avoided.”
In two separate judgments delivered by the Federal High Court in 2020, the very hardworking late Hon. Justice Ibrahim Watila (God rest his soul) did not mince words when his lordship held that data protection has nothing to do with right to privacy under section 37 of the Nigerian Constitution and actions bordering on data breach cannot be validly brought under fundamental rights procedure. (See the unreported decisions in Suit No. FHC/AB/CS/85/2020 between Digital Rights Lawyers Initiative and Unity Bank and Suit No. FHC/AB/CS/ 79 between Laws and Rights Awareness Initiative and National Identity Management Commission delivered in December 2020.
Data Protection is cognizable under Right to Privacy (Second School)
Dr. Lukman Adekunle Abdulrauf, a lecturer at the University of Ilorin, is arguably Nigeria’s most prolific scholarly writer on data protection with several papers published in local and international journals and length his weight to this school of thought that posits data protection as a human right.
In his co-authored work published in Springer’s Liverpool Law Review titled “Personal Data Protection in Nigeria: Reflections on Opportunities, Options and Challenges to Legal Reforms” he contends that’s:
“Without ignoring the strengths of the arguments in favour of data protection as commercially driven, there is an equally stronger movement in favour of data protection as a human right. The contention is that anchoring data protection on economic success rather than human rights will naturally have the effect of relegating privacy and autonomy to the background…. In spite of the commercial purposes, there is no denying that data protection has its roots in the right to privacy in international human rights instruments like the Universal Declaration of Human Rights (UDHR),57 International Covenant on Civil and Political Rights (ICCPR)58 and European Convention on Human Rights (ECHR).59 Thus, the normative basis of data protection is in human rights instruments which arguably makes it a human right too… Based on the above, data protection can be said to be a composite human right because of its strong attachment to the right to privacy and other human rights.”
In the same school, another prolific academic, Dr. Bernard Jemilohun of the Ekiti State University wrote in his paper “Regulations or Legislation for Data Protection in Nigeria? A Call for a clear legislative Framework” that:
“Data protection legislation is a form of human right protection legislation and it will amount to gainsaying to think all that is about data protection is just about technology and the need to develop its use or prevent the abuse thereof.”
In 2020, the Alliance Law Firm via its erudite principal partner, Mr. Uche Val Obi, SAN (author of Nigeria’s only book on class actions) published a paper titled ” An Extensive Article on Data Privacy and Data Protection Laws in Nigeria” where the learned Silk states that:
“As is applicable to most jurisdictions, Nigeria’s data privacy and data protection regime emanates from the fundamental legislation of the land i.e. the Constitution of the Federal Republic of Nigeria 1999, as amended (“the Constitution”), which, by virtue of section 37 thereof protects the rights of citizens to their privacy and the privacy of their homes, correspondence, telephone conversations and telegraphic communication. Data privacy and protection are thus extensions of a citizen’s constitutional rights to privacy.”
Earlier in 2020, the High Court of Ogun State (per Akinyemi, J. and Ogunfowora, J.) in two separate judgments unequivocally held that right to privacy under the Constitution extends to data protection. (See Suit N. AB/83/2020 between Digital Rights Lawyers Initiative and National Identity Management Commission and Suit No. HCT/262/2020 between Digital Rights Lawyers Initiative and LT Solutions Media Ltd)
I had the privilege of participating in all the judgements referred to in this piece and since they are all subject of pending appeals, I will refrain from stating my position. That said, the law on relationship between data protection and privacy remains unsettled within and outside the Nigerian courts. Hence, anyone can safely pitch his tent with any of the schools of thought and still remain on the right wicket since none of the decisions are yet to be set aside on appeal.
Ultimately, until we have the benefit of an appellate court decision on this all-important industry issue or a remedial legislative intervention, the banters on the nature of data protection rights as fundamental or ancillary claims will continue for a long time and this may not augur well for the stakeholders, especially the courtroom practitioners.
by Legalnaija | Jan 29, 2021 | Uncategorized
ongoing controversy of copyright infringement between investigative journalist
Tobore Ovuorie and EbonyLife TV has created a lot of buzz on social media.
Tobore alleged that her report on Sex Trafficking in Nigeria titled “Inside Nigeria’s Ruthless Trafficking
Mafia” which was published by Zam Chronicles in January 2014 and
Premium Times in August 2014 was adapted by EbonyLife TV into a movie titled “Oloture” without her consent
thereby infringing on her copyright. In her words, “Oloture is a copy and
paste of my work, Oloture is my work, Oloture is my life story”.
CEO of EbonyLife TV, Mo Abudu in response to
the allegations made a video denying the claims and stated that she obtained
rights to adapt the report to a movie from Premium Times whom she claimed owned
the copyright to the report as Tobore was an employee in Premium Times. In the
same statement, she claimed Oloture is a “work
of fiction” however promotion for the movie depicts the movie as being “inspired by a true story”.
also stated that in May 2019, she reached out to Tobore to “acknowledge her
journalistic achievements. To commend, recognize and encourage her in her ongoing
campaign against sex trafficking and that of her NGO”. She also stated that she
granted Tobore a private screening of the movie and gave her a special mention
in the end credit of film.
further stated that she wrote to Tobore, offered 5% of the profits of the film’s
cinema run to Tobore’s NGO which Tobore acknowledged. However due to the Covid
19 Pandemic, the movie could not be released in the cinemas so the film was
released on Netflix.
response, Tobore claims that she started working on the report as a freelance
journalist before she became an employee of Premium Times. She insisted that
Oloture is her story, her experience which was adapted without her consent.
Through her lawyers, she also demanded the sum of 5 Million Dollars for
copyright infringement and the immediate inclusion of a proper credit and end
credit in the movie and acknowledging the adaption of her work in line with
industry standard and practice.
debacle has raised the legal issue bothering on copyright law more particularly
on who owns the copyright on the report. The possibility of this matter being
decided in court is imminent.
THE ISSUE AT HAND
regards to who may be entitled to the ownership of the copyright, it is
important we look at the provisions of the law regarding this issue. The issue
to be discussed herein is the issue of ownership as only the owner of a work
that has copyright to it and can give consent for its use.
PROVISIONS OF THE LAW
provisions of the Copyright Act LFN 2004, the author of a work owns the
copyright. In this case, Tobore Ovuorie is clearly the author of the report.
However, the Act provides exceptions where the author will not be deemed the
owner of the work. This is contained in Section 10 (1) and (3) which provides
for the general rule and the exception relating to this case respectively.
(1). Copyright conferred by Section 2 and 3 of
this Act, shall vest initially in the author.
(3). Where a literary, artistic or musical work is
made by the author in the course of his employment by the proprietor of a
newspaper, magazine or similar periodical under a contract of service or
apprenticeship as is so made for the purpose of publication in a newspaper,
magazine or similar periodical, the said proprietor shall, in the absence of
any agreement to the contrary, be the first owner of copyright in the work in
any newspaper, magazine or similar periodical; or to the reproduction of the
work for the purpose of its being so published; but in all other respects, the
author shall be the first owner of the copyright in the work.
section is basically saying that copyright ownership belongs to the author of
the work. However, Subsection 3 provides an exception which states that
copyright of a literary, artistic or musical work made in the course of
employment in a newspaper, magazine or similar periodical belongs to the
employer in the absence of any agreement stating otherwise but only limited to
the published reproduction of the work. Therefore an employer has a limited
clear that Tobore is the author of the work and Premium Times is the proprietor
but by virtue of Section 10 (3), she is equally the owner therefore copyright
protection is vested on Tobore and not Premium Times or Zam Chronicles. The
claim by Mo Abudu that “Oloture” is a complete fiction may not be tenable in this
case because it is evident that the movie was inspired by her report. Also, Mo
Abudu would not have approached Premium Times and Tobore if the movie was not
inspired by the report.
by the law, Tobore has exclusive rights, both economic and moral rights to the
work. The right of Premium Times and Zam Chronicles is limited. Therefore, EbonyLife
TV ran foul of the law by failing to obtain consent from Tobore before adapting
her story into a film.
one could see the film is based on Tobore’s story. It would be safe to presume
that EbonyLife TV may be liable for copyright infringement. However, the matter
may take a different turn when new facts are brought to the fore. At this
juncture, we need to keep our fingers crossed and watch the outcome of this
Disclaimer: This views and opinions expressed in
this article are those of the writer and do not represent the views of her
employer or the court.
Freda Odigie is a legal practitioner at E.A Otokhina & Co Legal
Image source: bytestart.co.uk
by Legalnaija | Jan 29, 2021 | Uncategorized
This paper attempts to discuss the arbitral
institutions and the considerations parties and counsel must contemplate in
selecting an arbitral institution, which is a crucial process and can indicate
from the on-set, the seat of arbitration which is primary in initiating,
deliberating and enforcing an arbitral award.
This discourse provides a comparative
analysis of some top global arbitration institutions and the advantages or
challenges arbitration institution users must reflect on in choosing an
institution, as well as providing a further insight into the growing trend in switching
between Arbitration and Mediation and its efficacy in resolving international
disputes with a particular focus on the emerging areas in Africa, particularly
AGREEMENT VIS-À-VIS ARBITRATION CLAUSES
Most arbitration agreements are entered
into as exit strategies, they are inserted into agreements without much thought
as to the dynamics of the arbitration proceedings in the event the contractual
relationship actually goes wrong.
No partner wants to be the one proffering
detailed solutions as to how their marriage should be dissolved if it gets to
that, but as much as we all want a happy ending, some marriages must dissolve.
Thus, when things go wrong, parties have to ensure that their arbitration
agreements fulfil their expectations of an easy way out; the best ‘exit
Practice has shown that parties enter into
arbitration agreements either in compliance with global standards and trend or
with limited background information. This presentation focuses on guiding
individual and businesses in choosing the ‘right’ arbitration institution when
drafting arbitration agreements.
The foremost choice to make in drafting
arbitration agreements is to decide on what form the terms should take, as an
ad-hoc arbitration or institutional arbitration.
An ad hoc arbitration clause, requires a
less formal structure. Hence, it may be preferable for parties to create a
detailed structure for the arbitration in the agreement, or else agree to the
application of non-administered arbitration rules like that of the United
Nations Commission on International Trade Law (UNCITRAL).
In institutional arbitration, the task of
agreeing to relevant procedures can be fairly easy, as all institutions have
their set of rules governing the conduct of the arbitration process if there is
no contrary agreement between the parties.
A survey of international arbitration users
in 2015 found that 79% of the arbitrations they were involved in over the
previous five years (2010-2015) were institutional arbitrations (2015
International Arbitration Survey: Improvements and Innovations in International
Arbitration by the School of International Arbitration at Queen Mary University
of London. The survey is available on the QMUL’s website).
There are several reasons for this
preference for institutional arbitration. An institution can lend political or
moral weight to awards. More practically, because institutional rules are
designed to regulate the proceedings comprehensively from beginning to end, the
institutions are better suited to cater for contingencies that might arise,
even if (as sometimes happens) a party fails or refuses to cooperate. By
incorporating an institution’s rules into the contract, contracting parties
also avoid the time and expense of drafting a suitable ad hoc clause.
As noted above, the institution will also
assume administrative responsibility for the arbitration, and take care of
fundamental aspects of the arbitration procedure. The fees and expenses of the
arbitration are, with varying degrees of certainty, regulated, and some
arbitral institutions independently vet awards to ensure enforceability.
CHOOSE AN ARBITRATION INSTITUTION?
Arbitration institutions have their
distinct features in terms of their modus and form. Some of these features are
determined by the institutions based on their peculiar services, like the
expensive commencement fee of the International Centre for Settlement of
Investment Dispute, while others are not so much in control of the
institutions, like territorial locations.
The London Court of International
Arbitration (LCIA) for example, is expectedly situate in London. Therefore,
just like determining what size of shoes to buy according to the size of one’s
foot, so is choosing an arbitration institution according to the peculiarity of
the nature of business or relationship entered into.
It is imperative that parties decide what
arbitration institution with a profound knowledge of the various systems and
mechanisms of the institution and how they best fit in with their business.
There are many institutions to choose from.
As a general rule, newly formed institutions or institutions without a proven
track record should be avoided.
That aside, there is no magic formula for
choosing between them. Increasingly, institutions and institutional rules are
offering similar processes with little to distinguish them. An example is the
widespread introduction of mechanisms such as emergency arbitration, once a key
distinguishing feature of only certain leading institutions. Such similarity
leads parties to look to more subjective factors in deciding which institution
to use: familiarity with the institution, their opinion of the international
acceptability or reputation of a given institution, the proactiveness and
responsiveness of the institution’s staff, and the institution’s neutrality or
It is important to recognise that
institutional arbitration rules provide only a framework for the procedure of
the arbitration. The way in which the arbitration is conducted will be
determined by the specific approach of the arbitrators. Factors such as their
degree of experience in international arbitration, legal background and
training, and views on the legal issues for determination in the arbitration
will influence their approach. It is therefore essential to consider carefully
the approach you want the tribunal to take when selecting your arbitrator.
In choosing an arbitration Institution,
certain criteria have to be taken into consideration. Some of the major ones
The seat of the arbitration;
The level of involvement of the arbitration
Fast track arbitration and early determination;
relative abilities and expertise of the institutions with respect to types of
The relative experience and ability of
the institutions’ administrators or secretariats respecting case
reputation insofar as reputation may enhance or undermine the prospects for
enforcement of an arbitral award;
both administrative and arbitrator fees; and
certain institutions are better suited for arbitration in certain locations.
The ‘seat’ of arbitration, although
abstract in form, is a subject of a legal conflict. Simply, the ‘seat’ of
arbitration is the legal domicile or home of international arbitration. It
provides for the nation’s Arbitration Law that would govern the arbitration.
On the other hand, the ‘venue’ or ‘place’
of arbitration refers to the specific geographical location for the purpose of
the arbitration proceedings. The principles that guide courts to resolve the
disputes of seats are the provisions of the arbitration clause.
Generally, seats imply the laws of the
arbitration that would guide the arbitration procedure while the venue
determines the physical location of the arbitration. The Arbitration law of
Nigeria (The Arbitration and Conciliation Act of 2004) does not expressly
provide for the seat or venue of arbitration, however the court in NNPC v LutinInv Ltd (2006) 2 NWLR (pt. 965)
506 interpreted the usage of ‘place’ to also mean ‘venue’.
In a proceeding to enforce the award of
USD6.6 billion arbitration award against Nigeria, Nigeria argued that the
arbitration was supposed to be seated in Nigeria and not England and therefore
the award should not stand. The court held that reference to ‘venue’ in an
arbitration agreement referred to the legal seat. The agreement in this matter
was actually couched to allow the Arbitration and Conciliation Act of 2004
(ACA) to be applicable, but it went ahead and provided that the venue of the
Arbitration should be London, England or as parties agree. Although Nigeria
successfully overturned the award, it was not based on the ‘seat’ argument, but
on public policy grounds. The court found that since the proceeding took place
in London, Nigerian courts cannot set aside the award. The court’s decision was
based on the following reasons:
clause referred to venue “of the arbitration”, implying that it would
apply to the whole proceedings. This was compared with the language used
in the Nigerian ACA to refer to the physical location, for example where a
tribunal may “meet” or “hear witnesses, experts or the parties”.
clause stated that the venue of the arbitration “shall be” London. If the
reference to “venue” was to where the hearings would take place, it would
be inconvenient for this to be in London given the location of the
parties. The court reasoned that this was not something that the parties
were likely to have intended. In addition, the arbitration agreement
allowed the “venue” to be changed only by the parties, not the tribunal.
The selection of the hearing venue is typically decided by the
arbitrators, further indicating that the parties intended to refer to the
to the rules of the Nigerian ACA was not inconsistent with the choice of
England as the seat. Any non-mandatory provisions of the Arbitration Act
1996 were displaced and only the mandatory provisions would continue to
The seat is a key factor in
any arbitration. It provides a “home” for the arbitration, determines the law
governing the relationship between the tribunal and the courts, and also
determines which court has supervisory jurisdiction over the arbitration
(giving them the power to, among other things, set aside an award). The seat
will also determine where the award has been made, which is significant when
trying to enforce the award.
The physical location of an
arbitration does not have the same legal significance. Generally speaking, the
location is decided based on convenience of all involved. It does not need to
be (and frequently isn’t) the same as the legal seat of the arbitration.
It is important for parties
to designate the legal seat of an arbitration in their arbitration agreement.
This case underlines the benefits of using clear terms when referring to the
intended seat in an arbitration agreement to ensure that the legal seat is
where the parties intended and to avoid unnecessary procedural disputes.
Level of Institutional Involvement
Arbitral institutions have
varying levels of involvement in managing and administering arbitrations.
Institutions such as the Hong Kong International Arbitration Centre (HKIAC),
for example, promote their “light touch” approach with rules
emphasising party autonomy and entrusting the arbitrators with the primary
decision-making power. Other institutions, such as the International Court of
Arbitration of the International Chamber of Commerce (ICC), are known for more
intensive involvement in arbitrations. One practical example of these
contrasting approaches is in respect of scrutiny of arbitral awards.
Institutions like the ICC and the Singapore International Arbitration Centre
(SIAC) engage in a mandatory scrutiny and approval of draft awards of the
tribunal. The ICC Court performs the scrutiny process and may lay down
modifications as to the form of the award and, without affecting the tribunal’s
liberty of decision, may also draw the tribunal’s attention to points of
substance. The idea is to prevent the award suffering from defects in form or
substance that could give rise to difficulties at the enforcement stage. Many
other institutions, such as the HKIAC, London Court of International
Arbitration (LCIA), and the Arbitration Institute of the Stockholm Chamber of
Commerce (SCC), do not scrutinise or approve awards, leaving it to the tribunal
to render a valid award. This difference reflects the varying views about the
value of the scrutiny process, some parties consider the additional quality
assurance to be a benefit, while others see it as imposing unnecessary delay
Cost of the Arbitration
There is no straight jacket as to which
institution is best, but each institution has its attendant advantage to
parties according to the peculiarity of the circumstance of each case. Let us
look at the cost variation of five popular Arbitration institutions to help
drive this point. The institutions are:
International Court of Arbitration of the International Chamber of
London Court of International Arbitration(LCIA)
Arbitration Institute of the Stockholm Chamber of Commerce(SCC)
Singapore International Arbitration Centre(SIAC)
The International Court of Arbitration of the
International Chamber of Commerce(ICC)
In an ICC proceeding, the
arbitrator’s fee and administrative charges depend on the amount in dispute (ad
varolem system). The ICC offers a cost calculator on its website, which will
provide an estimate of the cost of an ICC proceeding according to the current
For the arbitrator’s fee, the ICC Rules set a
minimum and maximum amount. The ICC Court determines the exact cost by taking
into consideration the specific circumstances of the proceeding, such as, for
example, how complex the case is or how timely the tribunal rendered the award.
Where there is a tribunal involving three members, the arbitrator’s fee is
multiplied by three.
The administrative charges are based on a fixed
percentage of the amount in dispute.
The London Court of International Arbitration(LCIA)
In LCIA arbitration, the arbitrator’s fee and
administrative charges are largely fixed on an hourly rate basis.
After a party has nominated or the LCIA has
selected an arbitrator, the LCIA’s Secretariat asks the arbitrator to advise
the hourly rate applied in the case. The LCIA’s Schedule of Costs generally
sets a cap to this hourly rate, which is currently GBP 450 (USD 608.93 as of
In practice, the LCIA Court will recommend a
certain maximum rate based on the circumstances of the case before the
arbitrator advises the Secretariat about their hourly rate. The recommended fee
is often lower than the maximum rate. Normally, arbitrators follow the LCIA
Court’s recommendation. In cases with a modest amount in dispute, arbitrators
have charged hourly rates of between GBP 150 and GBP 200.
Administrative charges consist of the time-based
charges of the Secretariat, a non-refundable registration fee and an additional
fee equal to 5% of the total arbitration fee. The hourly fees of the members of
the Secretariat vary between GBP 150 and GBP 250, depending on the member’s
function in the Secretariat.
The Arbitration Institute of the Stockholm Chamber
the case of an ICC proceeding, the SCC’s arbitrator’s fee and administrative
charges depend on the amount in dispute. The SCC also offers a cost calculator
on its website.
the ICC Rules, for the arbitrator’s fee, the SCC Rules set a minimum and a
maximum amount. However, where there is a three-member tribunal, the
arbitrator’s fee is not multiplied by three. Instead, the SCC’s cost schedule
defines the fee for the chairman of the tribunal only. The co-arbitrators
generally receive only 60% of such fee.
administrative charges are based on a fixed percentage.
typical for the ad varolem system, the costof the proceeding
is dependent on the value of the transaction in dispute; the higher the value,
the higher the cost. Overall, arbitrators’ fees and administrative charges are
considerably lower when compared to the ICC. The higher the amount in dispute
is, the bigger this gap is, which means that in proceedings with a high amount
in dispute, the cost difference is substantial.
Singapore International Arbitration Centre(SIAC)
in ICC and SCC arbitration, the SIAC’s arbitrator’s fee and administrative
charges depend on the amount in dispute. The SIAC offers a cost calculator on its website also.
the arbitrator’s fee, the SIAC Schedule of Fees sets only a maximum amount payable to each
arbitrator. As an alternative to the
Schedule of Fees, the parties may agree on another method for determining the arbitrator’s fees. For the
administrative charges, the SIAC
Schedule of Fees also sets a cap only.
SIAC costs range somewhere in the middle between those of the SCC and the ICC. In comparison to the
SCC, the gap between costs is
subject to the amount in dispute involved.
is important to note that the institution would not only claim a first filing fee but will also require some
pre-payments to be made. (The
International Centre for Settlement of Investment Dispute requires a $25,000 upfront before a
matter is submitted to it). Those pre-payments
may be claimed before any meaningful step in the proceeding. Also, the total cost of an arbitration proceeding is
more than the sum of arbitrator’s
fee and administrative charges. Depending
on the applicable law in the arbitration proceeding, these legal fees may become a major cost
driver. For example, even if the LCIA
appears to be an affordable option compared to the ICC and SIAC, assuming that the seat of
arbitration was London and the applicable
law was English law, costs might add up quickly when a Turkish party requires legal advice from an English law firm.
Conclusively, when it comes to cost,
although it is important, it is not everything. The ICC is the most expensive
institution; it is yet the most popular. There are other attendant
considerations when deciding an arbitral institution, although cost is
Privacy of arbitral proceedings is one of
the key advantages of arbitration. The seat of the arbitration will often
determine what level of privacy and confidentiality is provided and, where
confidentiality is regarded as important, contracting parties should cater for
it in their arbitration agreement. That said, the approach of the institution
towards confidentiality may also be a factor when choosing the arbitral
institution; not all institutions provide for it as a default rule. The LCIA
and DIFC-LCIA Arbitration Centre (DIFC-LCIA) rules, for example, require the
parties to keep confidential all awards in the arbitration, as well as all
materials created for the purposes of the arbitration, and all other documents
produced by a party in the proceedings not otherwise in the public domain. Deliberations
of the tribunal also remain confidential, and neither institution publishes
awards without the prior written consent of the parties and the arbitral
tribunal. The ICC Rules, on the other hand, do not automatically oblige parties
to keep awards, materials and documents confidential, but simply empower the
tribunal, upon the request of a party, to make orders concerning the
confidentiality of proceedings or any other matters in connection with the
arbitration. Further, its Rules do not expressly prohibit publication of
awards, and the ICC regularly publishes anonymised excerpts from awards. From 1
January 2019 the ICC has adopted an opt-out approach to publication of its
awards: underacted awards may be published within 2 years of notification,
unless a party objects or requests redaction.
in Certain Types of Cases/Industries
Another distinguishing feature that parties
may look for is whether the institution has expertise in the particular type of
case likely to arise under their contract or in the particular industry in
which they operate. A number of specialist institutions have been set up to
handle disputes in particular areas and industries. Examples include:
The Panel of Recognised International
Market Experts in Finance (P.R.I.M.E. Finance), an institution offering
mediation, arbitration and other dispute resolution services to the finance
The World Intellectual Property
Organisation (WIPO) Arbitration and Mediation Centre, which caters for
intellectual property and technology disputes;
The Court of Arbitration for Sport (CAS),
which administers sports-related arbitrations; and
The Chambre Arbitrale Maritime de Paris
which administers and supervises maritime arbitrations.
These institutions publish rules tailored
to the types of disputes they deal with, and maintain rosters of arbitrators
who specialise in those types of disputes. Most of the major arbitral
institutions (like the ICC and LCIA) do not specialise in this way; the
argument being that there is no need for the institution to be specialised as
long as the selected arbitrator is a specialist, or is permitted by the
institution’s rules to appoint experts and/or rely on expert evidence from
party-appointed experts. Nevertheless, parties may feel more comfortable
dealing with an institution that specialises in its field.
Arbitration and Early Determination
In a survey of international arbitration
users, 92 per cent of respondents were in favour of the adoption of a
simplified “fast track” arbitration procedure for claims under a
certain value (2015 International Arbitration Survey: Improvements and
Innovations in International Arbitration by the School of International
Arbitration at Queen Mary University of London). Certain institutions provide
for expedited arbitration, which can be on a documents-only basis and before a
sole arbitrator. For example, under the SIAC Rules, the expedited procedure can
be applied for where the aggregate amount in dispute does not exceed SGD 6
million, the parties agree to use the procedure, or in cases of exceptional urgency.
The SCC also has separate expedited rules which the parties can agree to use.
As from 1 March 2017, the new ICC expedited procedure will automatically apply
to ICC arbitrations where the amounts in dispute are below USD 2 million.
Parties can choose to use the procedure for higher value cases. If contracting
parties want to have the flexibility to adopt a fast-track procedure, this
should be taken into consideration.
ANALYSIS OF SOME TOP ARBITRATION INSTITUTES
Various arbitration institutions have their
own system of operations according to various features. Let us look at some of
the top institutions and how they operate regarding the following:
Suitability/particularity, method of
commencing actions, number of arbitrators, appointment of arbitrators,
procedure, timeframe for preparation of award.
International Arbitration Centre:
arbitrations of all types, and is a common choice for transactions involving a
party from the People’s Republic of China.
of Commencing Actions:By notice in writing to HKIAC and all other
of Arbitrators:In the absence of agreement between the parties, HKIAC
decides whether one or three is appropriate.
of Arbitrators:Where there is one arbitrator, the parties jointly
designate an arbitrator, failing which HKIAC will appoint. Where there are
three arbitrators, each party designates one arbitrator and the designated
arbitrators nominate the presiding arbitrator, failing which the HKIAC will
to the HKIAC Rules, the tribunal has discretion on how to conduct proceedings
for Preparation of Award:Save for arbitrations under the expedited
procedures, there is no prescribed time frame for delivery of an award.
Court of Arbitration of the International Chamber of Commerce (ICC):
arbitrations of all types, particularly where the parties come from very
different backgrounds or those where administrative support or guidance is of
of Commencing Actions:By request sent to the Secretariat of the
ICC Court, which then notifies the respondent.
of Arbitrators:In the absence of agreement between the parties, one,
unless the ICC decides three is appropriate.
of Arbitrators:The parties by agreement or nomination (to be confirmed
by the ICC Court). In the absence of agreement, the ICC Court will appoint the
parties may supplement the Rules in their arbitration agreement. Subject to the
Rules, the tribunal has discretion in how to conduct proceedings.
for Preparation of Award: Six months from the signature of the
Terms of Reference unless the ICC Court specifies otherwise. This is extendable
and the ICC can take the efficiency and expeditiousness of the tribunal’s
handling of the dispute into account when deciding fees. Extensions are
Court of International Arbitration (LCIA)
arbitrations of all types. Often used in disputes involving either a Russian
and/or Common Wealth of Independent States (CIS)related party and/or a party
ultimately controlled by a Russian/CIS entity
of Commencing Actions: By request sent to the LCIA and the
of Arbitrators:In the absence of agreement between the parties, one,
unless the LCIA decides three is appropriate.
of Arbitrators:The LCIA Court with reference to the methods or
criteria agreed by the parties. The parties can nominate an arbitrator but only
the LCIA Court can appoint.
parties and tribunal shall make contact within 21 days of notification of the
formation of the tribunal. The parties may agree on joint proposals for the conduct
of the arbitration and are encouraged to do so in consultation with the
for Preparation of Award: As soon as reasonably possible (the
tribunal shall endeavour to do so no later than three months following the
parties’ last submissions), in accordance with the timetable notified to the
parties and the Registrar.
ARBITRATION IN AFRICA
Currently, nearly 100 arbitration
institutions of various sizes and areas of focus exist across Africa.
As expected, most of these institutions
will not earn strong global or even regional reputations. At the moment, at
least, the ICC and the LCIA continue to dominate international arbitration in
Africa, as they do international arbitration worldwide. In a 2018 survey of
almost 800 arbitration practitioners and users by White & Case and Queen
Mary University, African respondents chose the ICC and LCIA as the top two
institutions. The Lagos Court of Arbitration (LCA) ranked as the highest
African arbitration institution, although in sixth place. So, despite the
multitude of emerging African arbitration institutions, most African users
appear to continue to prefer to resolve their disputes primarily under the
auspices of the ICC and LCIA.
The reasons for this are complex and
multi-faceted, though this preference is most likely linked to the ICC’s and
the LCIA’s proven track records and substantial experience, which underlie
their well-established reputations. The emphasis on reputation, recognition and
experience effectively results in a greater weighting towards long-established
institutions. This means it may take a long time before newer arbitration
institutions in Africa can build their own international following and
performance track record.
No matter how high-quality an arbitration
institution’s administration, it takes a long time for that quality to
translate into reputation and then utilization. For example, the Singapore
International Arbitration Centre (SIAC) commenced operations in 1991, but did
not register 90 new cases in one year until 2006. The number of new SIAC cases
increased to 160 in 2009, and SIAC has received a steady inflow of new cases
each year since then, with 479 new cases in 2019.
Recent trends suggest that parties are
increasingly using top African arbitration institutions to resolve their
disputes. According to survey respondents in the School of Oriental and African
Studies (SOAS) Arbitration in Africa Survey 2020 Report, the top five arbitral
centres in Africa are the Arbitration Foundation of Southern Africa (AFSA), the
Cairo Regional Centre for International Commercial Arbitration (CRCICA), the
Kigali International Arbitration Centre (KIAC), the Lagos Court of Arbitration
(LCA), and the Nairobi Centre for International Arbitration (NCIA). CRCICA
had administered a total of 1,385 cases at the end of 2019, including 82 new
cases in 2019 alone. AFSA also has a caseload of approximately 60
international matters in addition to its domestic caseload of about 500
matters.8The caseloads of KIAC, NCIAand the LCA are also growing,
while the MCCI Arbitration and Mediation Centre (MARC), the alternative dispute
resolution arm of the Mauritius Chamber of Commerce and Industry, also remains
a high profile centre. In addition, regional institutions like OHADA’s Court of
Justice and Arbitration are reformingtheir systems to play a more prominent
role as an international arbitration-administering institution. In November
2017, the OHADA Council of Ministers approved an update to the Uniform Act on
Arbitration and the Common Court of Justice and Arbitration Rules to reflect
recent developments in international arbitration practice.
The increase in the number of cases
administered by top African arbitral institutions may be a sign that these
institutions are coming of age and developing their reputations. The growth,
even if slow, of these institutions shows that users are having good
experiences with them, including state-of-the-art facilities11and
well-trained work forces dedicated to the efficient management of arbitration
disputes. Modern, party-friendly rules that cater to users’ needs also reassure
parties that their disputes will be resolved in a fair, efficient and
INTERFACE BETWEEN ARBITRATION AND MEDIATION
The ability of an institute to combine both
arbitration and mediation develops a hybrid process. An agreement between both parties can create
a pathway for a filter process yielding a relationship that can intertwine
mediation and arbitration in a process. That is mediation can take place prior
to the commencement of the arbitral process or after its commencement and vice
In an arbitration process, the dispute is
settled by an arbitrator which is binding on both parties, while in a mediation
process, the mediator does not make the decision, but guide both parties in
resolving the dispute in a confidential manner and help both sides tackle
difficult subjects. A mediator is a facilitator.
The ability of an
institution to combine both arbitration and mediation process to ensure a
collaborative agreement, there must be a combined use of mediation and
arbitration emerging in a dispute resolution approach inoffering parties a
number of benefits. These include resolving parties’ disputes cost-effectively
and quickly and obtaining a binding and internationally enforceable decision.The
agreement between the parties can acknowledge and provide for a filter process
i.e. a contractual recognition that mediation can take place prior to the
commencement of the arbitral process or after its commencement.
This is done by incorporating
mediation in a tiered dispute resolution clause. The parties can agree that a
mediation will take place at any stage of the arbitration process. This has the
advantage of providing a formal mechanism for resolution of the entire dispute
which statistically has a reasonable prospect of success before moving on to a
more complex and expensive arbitration with the associated disadvantages of
that process. It gives the parties a final opportunity to resolve the dispute
amicably and has positive consequences in terms of the prospect of maintaining
a commercial or other relationship.
However, to date there
has been little agreement on several aspects of the combined use of processes.
The academic debate is ongoing about acceptable ways of combining mediation and
arbitration. At the same time, there is little evidence to suggest that practitioners
actually use a combination of mediation and arbitration. In a recent empirical
study of the current use of mediation in combination with arbitration, the
results reveal that the combined approach is used to a relatively low extent,
which contrasts with widespread recognition of the benefits that it seems to
offer. In vast majority of cases, the mediation and arbitration stages are
conducted by different neutrals, while the mediation stage usually involves the
use of caucuses.
The United Nations
Convention on International Settlement Agreements Resulting from Mediation (the
“Singapore Convention” or the “Convention”) came into force on 12 September
2020. The Singapore Convention is a significant step for international
commercial dispute resolution, enabling enforcement of mediated settlement
agreements among its signatories. For international businesses this means that
they are presented with another viable and effective alternative to litigation
and arbitration in resolving their cross-border disputes, especially during the
global COVID-19 pandemic.
By facilitating a
negotiated settlement between parties, mediation can usually provide them with
a faster, more cost-effective and commercial method of resolving disputes than
resorting to litigation and arbitration. With the aid of neutral and qualified
professionals, mediated settlements focus parties onto what really matters to
them, ironing out their differences swiftly in confidentiality while preserving
businesses’ reputation and their long term relationship. However, until the
Singapore Convention, no harmonised enforcement mechanism existed for these
negotiated settlements. Hence, the only remedy for a party who was faced with
an opponent refusing to honour the terms of such negotiated settlement, was to
bring an action for breach of contract and then seek to have the subsequent
judgment enforced, potentially in multiple jurisdictions. This was an expensive
and inefficient deterrent for parties to even consider mediation for the
resolution of their disputes, so they instead turned to arbitration or
litigation from the outset. Now, the Singapore Convention has the potential to
greatly increase the appeal of mediation as a mechanism of resolving commercial
disputes with a cross-border dimension. The Convention provides parties who
have agreed a mediated settlement with a uniform and efficient mechanism to
enforce the terms of that agreement in other jurisdictions, in the way that the
New York Convention on the Recognition and Enforcement of Arbitral Awards (the
“New York Convention”) does for international arbitral awards.
OF THE ARBITRATION INSTITUTIONS
The growing use and evolution of
arbitration has led to a burgeoning number of global and regional arbitral
institutions. Every institution is thus competing to secure, keep or expand its
own share of the arbitration world.
New arbitral institutions have been set up
in places such as Central Asia and Africa.
In November 2018, the Tashkent
International Arbitration Centre (TIAC) was established in Uzbekistan. TIAC
aims to be a viable alternative to arbitrating at Paris or London based
institutions. TIAC’s paradigms of success are cost, efficiency, compliance with
international best practices and top-class arbitrators. TIAC arbitration rules
adopt the latest thinking in arbitration. For instance, the rules enhance
transparency and legitimacy by giving additional powers to arbitrators (e.g.
Articles 10 and 20 of the TIAC Rules).
In Africa, the African Court of Mediation
and Arbitration (CAMAR) was established in April 2019. The Court, aiming to
open new perspectives and a better-organized legal framework, handles disputes
involving states, African companies and multinationals operating in the
continent. Such disputes have thus far been resolved before institutions in The
Hague, Paris or London. As rightly observed by Gregory Travaini, CAMAR “could
well be a contributing step towards the “Africanization” of arbitration”.
The ever-expanding list of new institutions
all over the globe, illustrated by examples above, has provoked strong
competition among the existing and new institutions. Internationally accredited
and well-known institutions, notably in Europe and Asia, have responded with
significant efforts in revising their respective arbitral rules (e.g. ICC Rules
2018 or Hong Kong International Arbitration Centre (HKIAC) Rules 2018).
The surplus of arbitral institutions has
some negative effects. Among others, the perceived efforts to attract users by
offering an increased number of services and tailor it to their own needs may
have a direct impact on the efficiency of the proceedings, which is one of the
key features of arbitration, by leading thus to unnecessary or even unwelcome
delays and costs. A risk of greater concern is that “sham” institutions or even
institutions that have no expertise or resources to administer arbitrations
properly will, in a spill over effect, also harm the profile of established
institutions and international arbitration in general. A recent example is the
18 billion Egyptian pound award administered by the Cairo-based International
Arbitration Centre (IAC), where the Egyptian Criminal Court sentenced to
prison both, the executive director of the IAC, under whose auspices the
award was rendered, and the administrative secretary to the IAC of the arbitral
institution in Cairo, for aiding and abetting the fraud. The question, yet to be
answered, is whether this recent case will have any impact on the caseload of
the IAC in the future.
The best way for arbitral institutions is
to establish cooperation between themselves and build similar rules. On 19 December
2017, the Singapore International Arbitration Centre (SIAC) launched its
Proposal on Cross-Institution Cooperation for Consolidation of International
Arbitral Proceedings (Proposal). By way of inspiration, AFSA and the Shanghai
International Arbitration Centre have created the China-Africa Joint
Arbitration Centre (CAJAC) in Johannesburg and Shanghai. Other innovative
efforts for cooperation include the Memorandum of Understanding (“MoU’s”)
signed by the ICC aiming to facilitate knowledge sharing and best-in-class
services on this field. More recently, Saudi Arabia’s Centre for Commercial
Arbitration (SCCA) and Dubai International Financial Centre (DIFC) Courts have
also signed a MoU. These “mutual assistance” agreements mark a milestone in the
cooperation and operation of arbitral institutions all over the globe, as they
strive towards harmonization and consistency among arbitral rules. Therefore,
as rightly stressed by Mr. Travaini, it seems that “cooperation would be more
fruitful than dry competition”.
OF MR OYETOLA MUYIWA ATOYEBI, SAN
OyetolaMuyiwaAtoyebi, SAN, is a
seasoned Arbitrator and legal expert with expertise in commercial andcross
border disputes,with a formidable level of expertiseand over a decade’s worth of experience in the practice
of Alternative Dispute Resolution mechanisms (ADR).
Drawing on expertise from a technical and
commercial background, he has market-leading and in-depth insight into a range
of industries, and has successfully
resolved and managed several business disputes through efficient,
cost-effective and impartial ways of overcoming barriers at any stage of
appointed as Presiding Arbitrator and as Member of several panels on countless Arbitral
proceedings. He has served on
both Domestic and International Arbitral Tribunals and he approaches issues with
a clear understanding of the commercial objectives of the different references.
outstanding performance has attracted international recognitions and awards. He
is the youngest lawyer in Nigeria’s history to be conferred with the highly
coveted rank of a Senior Advocate of Nigeria (SAN). He is the Managing Partner
of OMAPLEX Law Firm, an established law firm driven by technology
innovation. As an expert in emerging areas of law practice, he has core
competence in Commercial Transactions, ADR ,Intellectual Property, Cyber
Security and Fintech. He is described as the go-to person when it comes to
complex issues that arise in dispute resolution.
United Nations Commission on International Trade Law Arbitration Rules (as
revised in 2010). Please note that UNCITRAL is not an arbitral institution and
does not administer arbitrations.
2. 2015 International
Arbitration Survey: Improvements and Innovations in International Arbitration
by the School of International Arbitration at Queen Mary University of London.
The survey is available on the QMUL’s website:
3. See the
2018 International Arbitration Survey: The Evolution of International
Arbitration by the School of International Arbitration at Queen Mary University
of London, which recorded the reasons for respondents’ preference for certain
institutions. The top three reasons were “general reputation and
recognition of the institution”, “high level of administration
(including efficiency, pro-activeness, facilities, quality of staff)”, and
“previous experience of the institution”. The survey is available on
the QMUL’s website: http://www.arbitration.qmul.ac.uk/research/2018.
40-46 of the ICC’s updated Note to Parties and Arbitral Tribunals on the
Conduct of the Arbitration under the ICC Rules of Arbitration.
5. 2015 International Arbitration Survey:
Improvements and Innovations in International Arbitration by the School of
International Arbitration at Queen Mary University of London. Its 2018 survey,
The Evolution of International Arbitration, also reflected this preference,
with increased expedited procedures for claims regarded as one the key
improvements that would lead to greater use of international arbitration across
all industries and sectors. Both surveys are available on the QMUL’s website: http://www.arbitration.qmul.ac.uk/research/.