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A Lawyer’s Guide To Due Diligence |Kayode Omosehin, Esq.

by Legalnaija | May 25, 2018 | Uncategorized

A
lawyer will likely be engaged in legal due diligence in the course of his
advisory services to his clients, especially in respect of business
combination, a public offering of securities or regarding a credit facility. A
due diligence is simply the investigation of a target company on behalf of
investor(s) by reviewing the target company’s records, contractual documents,
court documents and interviewing its officials or other persons with useful
information about the target company.

Due
diligence takes two forms: physical and virtual. In physical due diligence, a
lawyer visits the office of a company to examine or review documents
physically. In virtual due diligence, the review or records is done online
through a “virtual data room” to which access is granted to the lawyers using
some security number or password.

1.
Purpose of Due Diligence

Essentially,
the purpose of due diligence is to reveal or identify potential assets and
liabilities of the target company. However, a lawyer should request to know the
focus of a legal due diligence to avoid spending more time reviewing irrelevant
documents. Beyond that, a due diligence should help to achieve the
following:

• To help an investor in better understanding of the
business of the target company;

• To aid the valuation of the business of the target
company;

• To aid the drafting of relevant transaction
documents between the target company and the investor;

• To identify any developments that can impede the
closing of the deal between the parties;

• To assist the lawyers in providing legal opinions to
the transaction parties;

2.
What to look out for during Due Diligence

In
the course of a due diligence, a lawyer is expected to look out for indicators
of value or potential liability or any potential development that may impede
the conclusion of the transaction. There are several material facts that elicit
the foregoing. Suffice to state that experience is a great asset in due
diligence. Few of what should be focused on, of course subject to client’s
specific instructions, are as follows:

i.
All incorporation and pre-incorporation documents of the target company to
determine:

– the shareholders and directors of the target
company;

– the authorized share capital, object clause and
capacity of the target company to enter into the proposed transaction;

– the level board or shareholders’ approvals required
by the target company to enter the transaction;

– the dividend policy or procedure for change;

– the subsidiaries of the company;

ii.
All leases or other contract documents between the target company and third
parties to determine:

– The assignment of rights and liabilities which may
affect the proposed transaction;

– Any required permits and licenses of government
prior to conclusion of the proposed transaction;

– Prohibition clauses against the proposed transaction;

– Outstanding debts or other obligations that may
become due under the contract with a third party before the conclusion of the
transaction;

– Whether any purchase or sale of assets can impact
the proposed transaction negatively;

iii.
All documents showing ownership of assets and liabilities to determine:

– Existence of any mortgage or lien or other charges
in respect of any of the properties;

– Any unpaid land use charges or development levy or
other regulatory fees;

– The value of the property from the title document;

– Any tenant in any of the properties;

– Shareholding interests in any other companies;

– Debentures issued by the company;

– Vehicles and other moveable assets;

iv.
All documents relating to proposed or pending or completed litigation to
determine:

– The potential monetary liability (if any) and
possible defence;

– Outstanding judgement sum;

– The litigation history of the kinds of claims that
have been paid in the past;

v.
All documents relating to labour and employee benefits to determine:

– Any potential or unclaimed redundancy or other
employment benefits;

– Whether there is policy on benefits in the event of
the proposed transaction;

vi.
All documents relating to tax and statutory filings to determine:

– Tax payment compliance;

– That all tax returns filing at the FIRS or the
relevant State tax authority is up to date;

– Annual returns filing at the CAC is up to date
(please note that penalty applies to late filing of annual returns by
companies);

vii. All documents relating finance of the company to
determine:

– If there is an outstanding loan obligation;

– If there is any escrow account, what funds are there
and how the funds will be used;

viii. All documents that relate to compliance with
anti-corruption laws to show:

– If any payments or gifts were given to government
officials or agencies;

– Whether any payment or gift violates any
anti-bribery and anti-corruption laws or other criminal law;

3.
Report of Due Diligence

Report
of due diligence is important to the client, whether it is an investor or
acquiring company in mergers or acquisition or other transactions. A lawyer
should make his or her report as brief as possible without leaving out
significant details. The report should be a summary of the important
discoveries and should address the instructions of the client.

4.
Common Mistakes in Due Diligence

A
lawyer should be mindful of the common mistakes in conducting due diligence.
Few of these mistakes, which must be avoided, are as follows:

i. Lack of understanding of the client’s instructions
or the proposed transaction and the focus of due diligence;

ii. Incomplete due diligence exercise as a result of
fatigue or inadequate time or personnel;

iii. Bias or other improper influence;

iv. Assumptions regarding regularity and statutory
compliance; and

v. Unclear information or misstatement of facts in due
diligence report.

NOTE:
The above is just a guide and may not address all circumstances of due
diligence. Specific enquiries can be made to kayode@koriatlaw.com

Kayode Omosehin

Principal Associate

Koriat Law

Source – LinkedIn

3rd ICC Africa Conference on International Arbitration

by Legalnaija | May 25, 2018 | Uncategorized

The 3rd ICC
Africa Conference on International Arbitration will take place on Monday June
18th and Tuesday June 19th, 2018 at the Civic Centre, Ozumba Mbadiwe Street,
Victoria Island, Lagos.

The
conference is an annual event at which the African arbitration community
updates itself on developments in the region and is also a great opportunity
for participants to network and develop excellent business and professional
relationships.

Early
bird registration ends on June 1, 2018. Do take advantage of the cheaper
registration rate by calling the ICC Secretariat on 08035051058 or 08142388241
or visit the website: https://iccwbo.org/event/3rd-icc-africa-conference-international-arbitration

A 30%
discount is available to all YAF Members in the Region.

We
look forward to seeing you at this year’s conference!

ADDITIONAL
INFO

The
conference, which is the most important gathering for the African arbitration
community will provide invaluable updates on developments in the region, during
a series of panel discussions with a faculty of prominent speakers and thought
leaders.

ICC’s
annual Africa conference, held in English and French, is the key forum
for understanding international commercial arbitration in Africa. This
conference provides an indispensable update on developments in the region and
is becoming the most important gathering for the African arbitration community.
Not only does it offer a line-up of top-class speakers, topical discussions and
relevant news, but also an excellent opportunity to network. The conference
attracts more than 350 participants representing about 15 countries.

FULL
CONFERENCE PROGRAMME AND SPEAKERS ON THE SITE: iccwbo.org/event/3rd-icc-africa-conference-international-arbitration

Legal Titan Aare Afe Babalola, SAN endorses Paul Usoro for NBA Presidency

by Legalnaija | May 25, 2018 | Uncategorized

The
Prince of Telecommunication Law, Paul Usoro SAN who is currently in Ado Ekiti,
paid a courtesy visit to his role model Chief Afe Babalola, SAN at his office
at the Afe Babalola University, Ado Ekiti, earlier today, 25th May 2018.

During
the visit, Paul Usoro, who is one of the NBA Presidential candidates for the
forthcoming election, informed the colossus that the purpose of his visit to
the Elder Statesman is to notify him of his aspiration to lead the Bar,
considering that Chief Afe Babalola is one of the great lawyers used by God to
elevate him to the rank of a Senior Advocate of Nigeria (SAN). He also noted
that the elder statesman has been very contributive to who he is today.

Chief
Afe Babalola was very elated to receive Mr. Usoro, SAN and his team in his
office. He stated that Mr. Usoro, SAN is his son and it will be good for him to
be the NBA President. He further stated that Mr. Usoro represents what he as a
person stands for – “Industry, Discipline and Integrity”. He then concluded by
praying for Paul Usoro and declaring his support for him.

The
Learned Silk arrived Ekiti yesterday for the NBA Ado Ekiti Branch’s
Annual Bar Dinner and was well received by prominent members of the Bar and
Bench during the commissioning of the Ultra-Modern High Court Complex, Ado
Ekiti.

IP ABC: – Can I Copyright My Book Title | Infusion Lawyers

by Legalnaija | May 25, 2018 | Uncategorized

I’m a
Nigerian author. Presently, I am writing my second book. The book is titled, Buhari:
100 Days in London and Other Stories. But there is a problem. I discovered
3 other writers who have written articles that are similar to the title of my
book. In fact, when I contacted one of the writers about this, he emphatically
told me that he was about to finish a book with a similar title. And just as I
tried to think it through, a Nigerian movie also with almost identical title
popped up in a TV advert. I badly want to use this title. For protection, can I
copyright the title of my book?

Answer

The
answer is NO.

Copyright
law does not protect titles of books or titles of other literary works. Also,
titles of both artistic and musical works are not copyrightable. (This may
partly explain why so many books out there have the same titles and no one is
getting into any legal troubles.)

The reason is that copyright protects only eligible works.

Eligible works are not only required to be artistic works (paintings),
broadcasts (radio programs), cinematographic works (films), literary works
(books), musical works (songs), or sound recordings (soundtracks, excluding
films) but also required to meet 2 vital conditions.

These 2 conditions are as follows:

1. Sufficient effort has been expended on making the work
to give it an original character;
and

2. The work has been fixed in any definite medium of
expression now known or later to be developed, from which it can be perceived,
reproduced or otherwise communicated either directly or with the aid of any
machine or device.

The
two conditions above are prescribed in section 1(2) of the Nigerian Copyright
Act.

Therefore, titles do not meet the first statutory condition above: sufficient
effort expended on making the work to give it an original character.

In
some other parts of the word, this is similarly described as a
significant amount of original expression. Expressions as short as
book titles do not qualify as sufficient effort. This is why you can
neither stop the writers using identical or similar titles with yours nor
protect your title under copyright. Copyright law says you need to do better
than that!

But this doesn’t give you or any person the right to title artistic,
literary, or musical works just about any existing title.

For instance, your book cannot be titled Buhari: 100 Days in London and
Other Stories if that title is another person’s trademark. In other words,
if the producers of the film 100 Days in London have trademarked the
film title, you are prohibited from using any identical or similar titles for
your book. (Yes, some titles qualify for trademark protection, either because
those titles are to be used in connection with business or have become so well
– known they are distinctively connected to a particular author or
publisher. This is more so with series and popular titles. Think the
series Harry Potter or the popular book Chicken Soup for
the Soul. Chinua Achebe’s Things Fall Apart—though with a title
which is not original to the author—may qualify for trademark protection
considering how well known the book has become globally. (Even Google honoured the author with a doodle recently.)

So the point is this:

Once
a book becomes a bestseller or becomes so successful it is recognized as a
distinctive brand, the author or publisher may trademark the title.
And once trademarked, the title is out of bounds to any person.

Consider this.

If
you can come up with a title that is not already in use—particularly in
the genre your book falls into—you may consider that title instead. As an
author, you need to keep your publications away from avoidable controversies.
You also don’t want to confuse your audience.

You wish to consider your options closely? For competent guidance, you may consult
an IP lawyer or law firm for professional advice and assistance.

IP
ABC

Source – Infusion Lawyers

LCA_YAN Symposium & International Moot Competition

by Legalnaija | May 25, 2018 | Uncategorized

As a prelude to the 2018 Lagos Court
of Arbitration, Young Arbitrators Network (LCA_YAN) International Moot Competition , there would be
a symposium on the theme “A Vision of International Arbitration Practice” on
the 25th of July 2018. This would mark the start of a 3-day event with the
semi-finals and finals of the moot on following days. See Flier for
more details.

Excerpts from Mr. Paul Usoro, SAN’s Speech at the meeting held with members of the NBA, Okitipupa Branch today

by Legalnaija | May 25, 2018 | Uncategorized

“The office of
the NBA President calls for service and not enrichment of oneself.

When I decided to
contest for NBA Presidency, I was actually looking at building and working with
an inclusive bar. A bar that takes care of every lawyer, whether from a
cosmopolitan place or the hinterland.

The kind of bar that
I envision is the type of bar that will be professional in outlook. A bar that
protects the interest of lawyers and also builds a practice for them.

My life has been
built around 3 critical things – God’s favour, building and maintaining
relationships, and keeping promises. These 3 things are very key and have made
me, by the grace of God, who I am today. As the President of NBA, I will keep
to my promises”.

University Dons Laud Paul Usoro SAN

by Legalnaija | May 25, 2018 | Uncategorized

A University Don, Professor Momodu Kasim-Momodu, Law Dean at Crescent University, Abeokuta recently lauded the eminent lawyer, Mr. Paul Usoro, SAN for his giant strides in the industry. The Professor made this known at a breakfast meeting in honour of Paul Usoro organised by the Young Lawyers Forum (YLF) of Kano, Ungogo and Dutse branches.

Speaking at the meeting, he hailed Paul Usoro for his exceptional and excellent skills over the years having one of the finest law firms, Paul Usoro & Co., that is known to hire young lawyers taking them through thorough pupillage and mentorship.

In review of the exploit of the learned silk, the University Don called on fellow academia and other lawyers in the country to choose Usoro as their candidate for the next President of the Nigerian Bar Association. “I have had faith in him from the first day I heard about his ambition to lead the NBA. I had never met him but I went online to read about his works and they are simply exceptional. Paul is a bar man that has the potentials to give us an Association that will put you and your dreams first”.

“A vote for Paul Usoro is a vote for yourself – if you vote for Paul Usoro, you are voting for your interest as a lawyer and you are also voting for the overall interest of the legal profession”, he enthused.

Notable personalities at the breakfast meeting include Alh. Tajudeen Oladoja (Life Bencher), Ibrahim Shehu, (YLF Chairman, Dutse branch), Abdullahi Musa Karaye, (YLF Chairman, Ungogo branch), Mukhtar Bello Shehu (YLF Chairman, Kano Branch), Ahmed Khali (YLF Chairman, Yobe Branch) among others.

In the same vein, as part of his agenda to have an inclusive bar, Usoro recently paid a courtesy visit to the law teachers of the Rivers State University of Science and Technology, Port Harcourt during the 2018 conference of the Section on Legal Practice of the Nigerian Bar Association (SLP NBA) held in Port Harcourt.

Addressing the law teachers, Paul Usoro said, “My coming here is to reinforce the belief that the bar under my leadership will work together with the academics to provide solutions to the myriads of problems facing legal practice in Nigeria. The academics are well placed to research into those problems and proffer solutions”.

In the euphoria created by the visit of the bar man, the Dean, Faculty of Law, Rivers State University of Science and Technology, Port Harcourt, Professor Nlerum Okogbule expressed the support of the academia to vote Usoro as the next NBA President. “We commend your foresight in the industry and we are impressed to have you speak to us at this conference. We would support you because we need innovations in the NBA. The bar needs somebody like you to lead the Association and you can be rest assured of our support”.

Paul Usoro is a visionary leader with the right temperament to unify all. He is a truly detribalised Nigerian with strong connections to all the geographical zones. Born in the East – South East, educated in the West, practiced in the North, now headquartered in Lagos with branch offices in Abuja and Uyo. He is a consummate professional and leader you can trust.

Paul Usoro, a responsible citizen – LIRS

by Legalnaija | May 23, 2018 | Uncategorized

The Executive Chairman of the Lagos State
Government Internal Revenue Service, LIRS, Ayo Subair, has lauded the
consistent commitment to responsibly remit taxes exhibited by Paul Usoro, SAN.

In an official letter sent to the learned
silk, the LIRS Chairman hailed Mr Usoro’s actions and appreciated his continued
support and ongoing partnership with the Lagos State Government. Subair further
revealed that such actions were exemplary and held him up as a model for all
Nigerian taxpayers to follow.

The Chairman appealed to Mr Usoro, imploring
him to sustain the level of tax compliance while enjoining him to continually
support the Akinwunmi Akinbode-led administration by lending a voice in
advocacy to members of his firm, Paul Usoro & Company, PUC, as well as
business associates on the utmost importance of prompt and adequate payment of
their taxes.

The LIRS Chairman concluded by assuring Mr
Usoro of his highest regards while felicitating with him ahead of the rest of
the year.

The Repeal And Re-Enactment Of The Companies And Allied Matters Act 1990 (Cap C20, Lfn 2004); What to expect? | Oyewole Gboyega

by Legalnaija | May 23, 2018 | Uncategorized

The Premise – After
28 long and hard years of its existence, the Companies and Allied Matters Act
of 1990 is finally going to be overhauled in favour of a new Act which would be
cited similarly. The repeal and re-enactment planned by the National Assembly by
virtue of the Bill for An Act to Repeal the Companies and Allied Matters Act
1990 (Cap C20, LFN 2004) is long overdue considering the fact that the Act had
been severely left behind by the times and had become a hindrance to modern and
efficient corporate governance practices as well as general economic
development.

The Expectation – There
is an expectation that the re-enacted law would address several issues which
have been problematic for companies and for the Corporate Affairs Commission in
the past and this has prompted many to look carefully at the Bill that has been
pass by the National Assembly.

Bottom-line – A few
notable changes and additions to the law are as follows:

The Governing Board
of the Commission – the issue of the leadership of the Corporate
Affairs Commission has been properly defined in the bill; expressly referring
to the leaders of the Commission as the “Governing Board” and not as “Members”
as was the case before. Furthermore, in the appointment of a representative of
the accountancy profession to the leadership of the Commission, the Institute
of Chartered Accountants would no longer be the sole organisation whose members
would be considered as other professional bodies in the accounting profession
would have a shot at a seat at the table.

A representative of
the Institute of Chartered Secretaries would now form part of the leadership as
well as a representative from the Federal Ministry of Industry Trade and
Investment. These additions are key corporate governance practices which ensure
the diversity of any Board to aid creative problem solving and well rounded
decision and policy making. The functions of the “Governing Board” are also
clearly spelled out in the Bill and the chief of these is policy making for the
Commission. This most definitely would ensure that the Commission has a clear
focus and goal at all times.

Requirement for Pre-action Notice – this is a crucial change as it would drastically alter the procedure
for filing lawsuits against the Corporate Affairs Commission. The Bill requires
that before a suit can be commenced against the Commission, a pre-action notice
must be issued and served on it. This protection has been afforded several
other federal government agencies and it is good to see that said protection
has been expanded to the Commission.

The Right to Form a Company – Another key
change is the fact that 1 person may now incorporate a private company so long
as the provisions of the Act in respect of same are complied with as opposed to
the previous position where there had to be at least two persons. This would
make for ease of commencement of a business.

Company Limited by Guarantee – the
requirement for the consent of the Attorney General to the incorporation of a
company limited by guarantee has been dispensed with under the Bill. This is a
very welcome development as the cumbersome nature of obtaining the Attorney
general’s consent has always been a massive stumbling block to the
incorporation of companies limited by guarantee which are essential to social
development.

Disclosure of
Capacity by Shareholder – the issue of shareholder transparency
which has long been a concern has been dealt with by the Bill. Every
shareholder would be required to disclose to the company within 7 days of
becoming a member, the capacity in which he holds the shares and if he holds
them as a beneficial owner. There is also obligation placed on the company to
disclose this information to the Commission.

Place of Meeting – a very
progressive change to the law is that private companies are now free to hold
general meetings electronically provided that such meetings are conducted in
accordance with regulations to be made by the Commission from time to time.

Oyewole Gboyega
Source – www.septemberpost.com

Building A Culture Of Arbitration And The Need For A National Policy On Arbitration | Dr. Olisa Agbakoba OON, SAN, FCIArb & Ridwan ‘Tola Bello, LLM, MCIArb.

by Legalnaija | May 22, 2018 | Uncategorized

The judicial system has proven extremely
inadequate at processing cases or enforcing decisions. Courts are slow and
generally considered inefficient for reasons that include funding, poor
physical facilities, staff shortages, congestions, and inadequate training etc.
The average duration for the resolution of cases in Nigerian courts is between
10 – 20 years spanning the entire tiers of the judicial system. This is
evidently unmanageable in any economy.

The enforcement of commercial
contracts or settlement of disputes continues to be a primary concern for
entrepreneurs and investors. Economic reforms and investment growth are hardly
achieved and barely successful in face of dispute resolution constraints. The
reason is that Litigation has become such a major bottleneck to business that
it is no longer seen as an effective mechanism for timely resolution of
commercial dispute. Reliable alternative methods of resolving commercial
disputes became imperative hence the introduction and wide acceptance of
Alternative Dispute Resolution (ADR) processes or mechanisms.

Arbitration has become the established method
of determining international commercial disputes. All over the world, states
have modernized their laws of arbitration to take account of this fact. In a
recent survey conducted by White and Case, in collaboration with Queen Mary
University, School of International Arbitration on the Improvements and
Innovations in International Arbitration, 90% of the respondents to that survey
confirmed that international arbitration is their preferred dispute resolution
mechanism.

New arbitral centers are being established
and there is rapid development of law and practice of arbitration. International
treaties such as the New York Convention of 1958 on the Recognition and
Enforcement of Foreign Awards as well a body like UNCITRAL[1]
is essential to the effectiveness of Arbitration internationally.

The attraction is that international
arbitration is conducted in different countries and against different legal, cultural
backgrounds with a striking lack of formality but upon certain and acceptable
international standards, norms and ethics.
Records support the establishment and effectiveness of arbitration
institutions. International institutions driving arbitration includes the ICC
in Paris, SIAC in Singapore, LCIA in London, HKIAC in Hong Kong. In addition to
arbitration services provided by these institutions, they set rules and other
procedural requirements which attract users universally.

Nigeria generates a significant volume of
commercial transactions (both domestic and international with about 80 percent
of these transactions originating or terminating in Lagos). Unfortunately,
dispute arising from these transactions are ultimately arbitrated in foreign
countries. This situation has been attributed to the inadequacy and efficacy of
Nigeria’s legal and institutional framework for Arbitration. The “flight” of
“domestic” (i.e. purely Nigerian) arbitration cases to arbitral venues outside
Nigeria is unhelpful to Nigeria’s economic empowerment and development strategy
programme (NEEDS). It also means loss of revenue for majority of lawyers and other
ADR practitioners. Various efforts and proposals have been made at the national
level and some states too. The Repeal and Re-enactment Bill of the Arbitration
and Conciliation Act 1988 currently before the legislature makes an attempt at
addressing this issue. What is required is a commitment and affirmative steps
for actualization of the proposals.

In line with promoting policies which
encourage the development of arbitration in this region, there is currently a bill
before the National Assembly for the amendment of the Arbitration and
Conciliation Act (ACA) 1988. Under the present 30
years old framework, lengthy and expensive are words that are often used to
describe arbitration proceedings in Nigeria. These are words which should not
be associated with arbitration as a means of dispute resolution. The reform will
help the argument for making Nigeria a preferred seat of arbitration and thus
increasing Nigeria’s share of arbitration.

The Olisa Agbakoba Legal Mediation and Arbitration Center submitted a
proposal to the House Committee in charge of the repeal and the re-enactment of
the Arbitration and Conciliation Act. Our proposal seeks to introduce in the
Bill an opt-in provision for fixing the seat of arbitration in Nigeria. We propose that where
parties have failed to determine Seat and Place of the Arbitration, the
Arbitration tribunal should revert
to Nigeria as the forum or seat for the Arbitration. This would invariably promote the growth of the industry and also encourage
investment, drive economic development and improve Arbitration practice and
culture amongst Arbitrators and relevant professionals.

Another example of policies that drive the
growth and culture of arbitration is the Lagos Arbitration Law 2009. Lagos
remains the commercial hub of the nation with the potential of becoming an
international financial and investment center in Africa. However, it requires an
efficient commercial dispute resolution environment founded on enabling legal
and institutional frameworks. In United Kingdom, the London Court of
International Court of International Arbitration (LCIA) in London derives
tremendous support from the London City Corporation with the London Chamber of
Commerce as one of the core drivers. In view of foregoing, affirmative action
could be taken by a state like Lagos. During my tenure as the NBA President,
precisely in 2008, I made a proposal to the Lagos State Government on the need
for establishment of a Domestic Arbitration Center in Lagos as a pilot
initiative. The state then started the process by introducing ‘a Bill for a Law to provide for the
establishment, management and operation of a Center which would act as a Court
for Commercial Arbitration as other Dispute Resolution (ADR) Mechanisms in
Lagos State and for connected purposes therewith’. This resulted in the
establishment of the Lagos Court of Arbitration in Lekki, Lagos.

In Nigeria, business managers (or their legal
advisers) who have to decide on the advantages of choosing Nigeria as an arbitration
forum will be interested to see that the appropriate frameworks are in place. What
prevails at Ad Hoc Arbitration and ADR bodies applying different kind of rules;
favourably and unfavourably to the parties. Nigeria has commercial centers like
Lagos, Abuja, Port Harcourt and Kano with the potential of becoming
international financial and investment centers in Africa. A national culture of
Arbitration is imperative as a framework and symbol of institutional
arbitration.

In fact, a national culture or policy on
arbitration will galvanize the improvement of domestic arbitration and provide
the platform for development and standardization of Ad hoc Arbitration process.
As an international organization, the Regional Center for International Arbitration
(RCIA) Lagos is constrained to drive the kind of national support required for
development and practice of Arbitration. The fact is that Nigeria can emulate
the practice in successful jurisdictions like Singapore or Malaysia, which have
strategically positioned themselves in their regions as arbitration hubs,
generating enough dispute resolutions to act as a catalyst in the development
of their respective economies. They achieved this by a national policy and
culture of arbitration. Another country that has seen significant development
by adopting a national policy in arbitration recently is Rwanda with the
establishment of the LCIA-backed Kigali International Arbitration Center. Mauritius
and Egypt have shown themselves to be sound choices for African arbitral seats,
and their use in intra-African arbitrations should be promoted.

It is worthy of note that not one African
arbitration centre has attained its full potential. This could be attributed to
the fact that there are simply too many of them. Limited resources should be
channeled efficiently for the development of three or four regional centres,
which are fully equipped with state-of-the-art facilities and information
technology. If establishing a regional centre faces too much red-tape, then governments
should consider simply promoting those African institutions which have
successfully established themselves (such as the LCA, CRCICA, Mauritius
International Arbitration Centre and the KIAC which have all struck the right
balance between being supported by their respective governments, without
control or interference from them), and making them the default choice in their
contracts. This removes an item from public expenditure, and may have benefits
in terms of the political leverage to be gained from encouraging the use of one
or more of these centres.

Next Steps –

Under the tenure of the former Attorney
General of the Federation, Prince Bola Ajibola, the Nigerian policy of
Arbitration was at its height. It was under this tenure that the Regional Center
of Arbitration was setup. The Government needs to promote its arbitration
policy by fully backing a center of arbitration. The Lagos Court of Arbitration
(LCA) undoubtedly, has potential to become a powerhouse in international
arbitration in West Africa. Its strong institutional rules and the recent
development in arbitration legislation in Nigeria demonstrates that it can gain
the trust and acceptance of the region, and this should be a good springboard
from which to build an international arbitration centre and a regional
arbitration hub.

If this centre was promoted in intra-African
arbitrations, then it would build a track record of international arbitrations
(albeit from other African countries), and gain enough credence to administer
non-African arbitrations.

Stakeholders such as banks, maritime
operators, government agencies need to propel the development of arbitration by
keying into the sector. Contracts in these sectors need to contain arbitration
clauses. Disputes resulting from such contract should be arbitrated in Nigeria.
There should be no reason for a purely Nigerian dispute between Nigerian
parties to be arbitrated in London. There is a need to grow the Nigerian
arbitration jurisprudence and expertise.

Stakeholders also need to engage Presidential
Enabling Business Environment Council (PEBEC) on the ease of doing business.
The council must understand that for there to be growth or development in
Arbitration, an arbitration policy is crucial. Investors need to be assured
that in the event of any dispute, there is an efficient legislative framework
on arbitration to resolve such commercial dispute.

Conclusion – Telling the World

Nigeria must be cognizant of its bargaining
power. In the scramble for resources, investors will be forced to accept local
or regional arbitral systems and/or African seats, or risk losing deals.
Indeed, in a survey conducted by Simmons & Simmons in 2015, 72% of
respondents said that they would consider using local or regional arbitral
systems, and 58% said they would use an African seat.

In order to develop arbitration in this
region and prop Nigeria as a regional hub in West Africa, it is incumbent on us
to take active steps to increase awareness. We must build up the capacity of
our arbitration centres, then market them aggressively. We must make
legislative reforms an agenda priority, then publicise them widely. Stakeholders
need to develop more seasoned Nigerian Arbitrators by encouraging partnerships
between international law firms and locally-based firms. This will enable the
transfer of knowledge and skills, and the opportunity to gain from the wealth
of experience which international law firms have to offer, in order to build
local capacity.

In all these efforts, it is important to act
quickly and capitalize on the current interest in the continent and Nigeria, as
this will eventually wane. If we are successful, perhaps what might emerge is a
more mature Nigerian arbitration jurisprudence, and evolution of an
African-centric style of arbitration, or at the very least, one in which Nigeria
has had an influence.

The culture and policy of arbitration in
Nigeria is still at its infancy.

[1] United Nation Commission
on International Trade Laws

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