Name of arbitrator:

Professor Konyinsola Ajayi, SAN

Education, awards, and selected publications:

Education:

• Ph.D., Selwyn College, University of Cambridge.
• LL.M, Harvard University, Cambridge, Massachusetts.
• BL, Nigerian Law School, Lagos
• LLB, University of Ife

Awards:

• FGN University Scholar 1976 – 1979
• Senior Advocate of Nigeria (2000)
• Professor of Law, Babcock University, Nigeria.

Selected Publications:

Books Authored:

• Legal & Financial Implications of the Nigerian Capital Market (Evans Bros. 1984) (published)
• Regulation of Banks & Financial Institutions (Greyhouse 1992) (published).

Contribution to Books

• Legal Aspects of Finance in Emerging Markets Series: Volume II, Troubled Assets Resolution, Olaniwun Ajayi Publication, LexisNexis Butterworths, 2012
• Legal Aspects of Finance in Emerging Markets, Olaniwun Ajayi publication, LexisNexis Butterworths, 2005.

Countries qualified to practice:

• Nigeria
• England & Wales

Language(s):

• English
• Yoruba

Name of law firm or institution:

Olaniwun Ajayi LP

Area(s) of specialisation:

• Dispute Resolution;
• Legal aspects of money;
• Oil & Gas;
• Infrastructure;
• Project Finance;
• Capital Markets; and
• Mergers & Acquisitions.

Institutional affiliation(s):

• Cairo Regional Centre for International Commercial Arbitration (CRCICA)
• Kigali International Arbitration Centre (KIAC)

Please provide a brief background of yourself and your experience working on disputes in Africa?

Over the course of the last thirty-nine (39) years practicing law, I have been exposed to different areas of commercial practice that have informed the lens with which I view litigation and arbitration. I have acted as sole Arbitrator, member of arbitration panels, and as Counsel in numerous ad hoc domestic and international arbitrations.

As the Managing Partner of Olaniwun Ajayi LP (a tier 1 rated law firm at the forefront of commercial practice in Nigeria), I have been privileged to lead the team of Counsel in several big ticket commercial and investment arbitrations involving intricate matters in the extractive industries, capital market, financial sector and international trade. I have and continue to represent IOCs, financial institutions, multinationals, corporates in several sectors, and governments in relation to some of the highest valued arbitration mandates.

What do you consider as the biggest challenge facing practitioners working on disputes in Africa? How do you think this challenge can be tackled?

I believe the biggest challenge for practitioners in Africa is the urgent need to repatriate African arbitration by developing expertise, as demonstrated by the recent case in the US showing a dearth of minority arbitrators.

At the moment, there is too much reliance on non-local actors. The notion that practitioners in these parts do not possess the requisite skill and experience to handle African related disputes continues to erode our collective abilities and undermines the practice of arbitration in Africa.

African players must be sensitive and ensure that they adopt laws of African countries, African arbitral institutions and arbitrators as well as counsel in the adjudication of commercial and investment disputes on the continent. It is also a thousand pities that local laws governing arbitration are sometimes archaic and consequently unhelpful in the development of arbitration.

While the courts have made efforts, they need to do a bit more to encourage arbitration – at the same time, the courts should be better equipped to develop and build the case law that arbitration relies on.

Drawing from your experience as the Managing Partner of one of the top law firms in Nigeria and Professor of Law, how do you think the business environment in Africa can be made more arbitration-friendly?

There can be no doubt that for over a decade, arbitration has been selected as the preferred means of resolving commercial disputes, given the ills associated with the traditional litigation process, and the imperatives of an effective and expedient means of resolving commercial disputes.

This said, the business environment needs to rely less on self – help and resort to the courts. In negotiating contracts and performing them, there ought to be a better eye for commercial realism rather than crass legalism or reliance on regulators. With this new perspective, the ease of arbitration itself will be better. In summary: the business sector as a whole, needs to be more commercially minded.

In addition to the foregoing, a growing challenge is the prohibitive cost of arbitration. There is therefore a fundamental need to review the entire arbitration process as it has become rather too expensive, lengthy and cumbersome by adopting the very legal technicalities that served as a disincentive to litigants from the traditional courts. Where the characteristics of the traditional court system is found in arbitration, the very essence is defeated.

The rising cost of arbitration has therefore become one of its downsides and has to be reviewed as a matter of urgency to retain the value arbitration brings to dispute resolution. Where the process becomes financially burdensome as it is today, small companies and indigent litigants will opt for the traditional public court system which provides a cheaper alternative.

What are your thoughts on the African Continental Free Trade Area Agreement and its potentials for business growth in Africa?

There can be no doubt that the AfCFTA has the potential to drive exponential growth of the African Market for a long time. At its core, the broad objective of the AfCFTA is to create a single continental market for goods and services, with free movement of business persons and investments, paving the way for accelerating the establishment of the continental customs union. Additionally, the AfCFTA is expected to enhance competitiveness at the industry and enterprise level through exploitation of opportunities for scale production, continental market access and better reallocation of resources.

When one thinks of the upside of the AfCFTA, which will bring together 54 African countries with a combined population of more than one billion people and a combined GDP of more than US$3.4 trillion, very few can reasonably contest the proposition that the outlook is unprecedented. I therefore expect African Nations to work assiduously to ensure that the AfCFTA is fully and properly implemented.

Today, Intra African trade is pitifully poor and has the worst in continental statistics about charity (in this case, business) beginning at home. Again, far too much is exported or otherwise outsourced to foreign markets – paradoxically hampering the growth of the markets. AfCFTA should therefore address these and the huge infrastructure gap in the market.

With the new model bilateral investment treaties emerging from some countries in Africa, how do you think Investor-State Dispute Settlement can be enhanced on the continent?

The proposed investment chapter in the AfCFTA would provide a framework to rationalize the proliferation of Bilateral Investment Treaties (BITs) and to streamline the divergent standards relating to, inter-alia, dispute settlement in the BITs between African states.

Negotiators of the investment chapter of the AfCFTA, will need to consider how conflicts and inconsistencies between the proposed investment chapter in the AfCFTA and existing BITs between AfCFTA States parties will be treated, as this does not appear to be covered by Article 19 of the agreement establishing the AfCFTA, given its reference to “any regional agreement”.

It is highly desirable to enhance the enforcement of any new framework on investment, and, in this regard, supra national entities such as AfDB, AFC, Afrexim, AU etc. can potentially play a critical role. However, a treaty-based framework may have inherent constraints on the role of non-parties not expressly stipulated in the relevant treaty. In the absence of anything in the emerging framework that provides such a role for any of the listed supra-national bodies, it is difficult to see how they can contribute to the enforcement of such frameworks. Thus, it is necessary to be proactive in including treaty language that provides a role for supra national bodies, absent which their involvement would lack any treaty basis.

It is noted that in the context of BITs, World Bank institutions, through the ICSID, play a critical role in setting standards on investment protection. It remains to be seen how such standards can be transposed into the new framework, whose raison d’etre is arguably to sideline institutions that are perceived as promoting investors’ rights, by striking a balance between the rights of capital exporters and capital importers – something that is absent in the current framework where investors’ rights are elevated above host state’s rights, given the imbalance in rights and obligations.

What advice do you have for young practitioners who see you as their role model?

The first point to note is this: it is the galvanizing force of a few that brings about change. We live in an era of disruption and so there is no place for those who are not of influence, talk less the indolent.

Given the era of disruptive technologies, young practitioners must think outside the box and develop innovative solutions to client’s intricate problems. As noted by one of the leading out of box thinkers, the traditional thinking can and has only been efficient in solving the complicated problems where challenges were predictable, linear and well defined. That era has since passed and current challenges is rife with complexities that are unpredictable, non-linear, and ill-defined. Young practitioners need to understand the peril in remaining with the status quo in the era of unprecedented disruptions.

In this era, it remains the case that excellence, like truth, has no duality; and today’s journey therefore requires punching above one’s weight. It is also the case that the legal profession has become more competitive in recent times, so young practitioners need to increasingly specialize and improve their technical abilities to ensure dexterity in servicing clients.  Secondly and perhaps more importantly, there are no shortcuts. Hard work is the currency for stars and the midnight oil must be burnt.