Name of arbitrator practitioner:
Ngo-Martins Okonmah
Education and selected publications:
Education:
- MSc. Construction Law and Dispute Resolution, King’s College, London
- LLB, Delta State University
Publications:
- An analysis of the ‘effective means standard’ as an alternative to securing enforcement of arbitral awards in Nigeria – IBA-Construction Law International (Vol. 11, Issue 2, June 2016) or http://www.aluko-oyebode.com/resources/an-analysis-of-the-effective-means-standard-as-an-alternative-to-securing-enforcement-of-arbitral-awards-in-nigeria/
- Introduction to the ICC Dispute Board Rules – Construction Europe Vol. 26 No. 9, November 2015 page 17 or khl.com/magazines/construction-europe co-written with Danielle Griffiths of Pinsent Masons LLP London, United Kingdom.
Countries qualified to practice:
Nigeria
Language(s):
English
Name of law firm:
Aluko & Oyebode, Nigeria
Area(s) of specialisation:
Construction, Intellectual Property & Arbitration
Institutional affiliation(s):
- ICC Young Arbitrators Forum
- LCIA, Young International Arbitration Group
- Chartered Institute of Arbitrators UK, Nigerian branch
- Society of Construction Law Nigeria (Affiliate of SCL, UK)
- Dispute Resolution Board Foundation UK
- African Arbitration Academy
- Association of Young Arbitrators
- Nigerian Bar Association
What influenced your interest in arbitration?
My attraction to arbitration was motivated by the fact that it provided me the opportunity to develop a truly international career. The attraction of advocating on a global stage before a tribunal of my choice with the award enforceable in several jurisdictions was particularly appealing. Also, the opportunity to engage and interact with colleagues across multiple jurisdictions, given arbitration’s international character appealed to me. I was also influenced by the independence and flexibility acting as an arbitrator could provide from a career perspective.
Besides, I was becoming increasingly frustrated by the myriad of inefficiencies common in the Nigerian court system. It also appeared to me that there was little growth in the Nigerian jurisprudence, as matters were often decided based on technical and procedural issues rather than on the substance of the dispute which raised questions regarding the efficacy of the judicial system and the value of our work as dispute resolution lawyers to the overall growth of the society.
What are some of the challenges faced by young practitioners working on disputes in Africa? What do you think can be done to address these challenges?
There is a cultural and educational problem. The society ascribes knowledge to age, thereby making it extremely difficult for young practitioners to find opportunities to show case their talents. Also, the educational system does not fully equip you to compete globally in your chosen field. In arbitration, there are not many Nigerian firms where young practitioners can acquire meaningful experience in international arbitration.
Some of these challenges are being addressed with increased access to technology where young practitioners can access better information regarding opportunities both locally and internationally and increase their visibility through different social media platforms. There are different start-ups being run by young practitioners many of which are enabled by technology. Also, there are increased secondment opportunities to international law firms. The Africa Arbitration Academy is playing a key role in educating young practitioners and providing a platform to network with experienced members of the international arbitration community. Another significant development is the conduct of high-quality mooting competition modelled after the Vis moots with leading Nigerian and foreign practitioners on the panel of judges. A lot more of these types of initiatives should be encouraged.
How do you think arbitration can be developed to transform the construction industry in Nigeria?
As construction disputes are mostly resolved via arbitration, typical challenges confronting general commercial arbitration disputes would arise in construction arbitration. However, due to the peculiarity of construction disputes, there are at least four areas of concern.
The first is the limitation period for the enforcement of arbitration award. The limitation period for contractual claims is either 5 or 6 years depending on the applicable state limitation law. However, time begins to run, not from the date of the award, but from the date of the breach of contract. The challenge with this is that most construction contracts contain multi-tier dispute resolution process as a pre-condition to arbitration. For instance, the FIDIC standard forms contract provide for a claims process, a dispute board and arbitration. As these steps are mandatory, there is a significant risk that the limitation period may elapse at the time of enforcing the award. The efforts to amend the statute to make the date of the award the commencement date for limitation in relation to enforcement has thus far not been successful.
Secondly, construction disputes usually involve multi-party, multi-contract arbitration. The Arbitration and Conciliation Act and the Arbitration Rules contained in the first schedule to the Act makes no provision for joinder of 3rd parties to arbitration proceedings or the consolidation of arbitration proceedings. Therefore, the law appears unsuited for multi-party, multi-contract construction disputes.
Thirdly, there is no provision in the Arbitration and Conciliation Act for the recognition and enforceability of orders and directions of emergency arbitrators. The requirement for emergency arbitrators is perhaps most prominent in construction disputes where there is often a need for emergency arbitrators to grant urgent reliefs such as the prevention of a call on the performance bond, preservation of assets, securing the claim or to suspend the application of liquidated damages. In the absence of express provisions for the recognition and enforcement of an award by an emergency arbitrator, there will always be doubt on whether such award would be enforceable by Nigerian courts under the New York Convention.
Finally, the Arbitration and Conciliation Act contains no express provision for court ordered injunctions and this could be particularly challenging where injunction is required in support of arbitration, considering the divergent position taken by Nigerian courts on the subject.
As one of the Drafting Committee members for the Africa Arbitration Academy Protocol on Virtual Hearings in Africa, how do you think the adoption of the Protocol for Virtual Hearings can help with time and cost efficiency of arbitration?
Perhaps, the biggest benefits of the protocol are its potential to achieve time and costs efficiency in arbitration proceedings through virtual means. The current Covid-19 pandemic has prevented in-person meetings in most parts of the world and this has had an adverse impact on international arbitration. Apart from Covid-19, arbitration proceedings sometime suffer delays and additional costs in the form of travel costs or the inability of witness to attend a hearing in person due to visa obstacles or the likes. The effectiveness of the virtual protocol, through its innovative provisions, means that parties, even post Covid-19 era, could adopt the protocol to conduct the entire arbitral process virtually to avoid unnecessary delays and costs.
Some of the provisions that make the protocol attractive is its flexibility and adaptability to both ad-hoc and institutional arbitration. It also takes into cognisance that arbitration awards procured through virtual hearing may be challenged on ground of procedural irregularities and recommends the use of a pre-virtual hearing agreement to avoid such challenge. The protocol contains specific guidance to deal with issues such as access to reliable technology and a stable internet connection, risk of improper assistance to witness being examined via videoconference and other issues associated with conducting arbitration proceedings virtually which makes it attractive to users of the arbitration process.
What is the current disposition of courts in Nigeria to enforcement of foreign arbitral awards?
Except in limited circumstances where an application for the enforcement of a foreign arbitral award or a convention award is statute barred, most decisions of the Nigerian courts have demonstrated a positive attitude towards the enforcement and recognition of foreign arbitral awards pursuant to the New York Convention.
Do you have any mentors in the field of arbitration? What impact have they had on your career?
I am privileged to have been mentored and supported at different points in my career by mentors who have guided me all through these years. To mention but a few, Babatunde Fagbohunlu SAN whose dedication and drive continue to inspire me. Phillip Capper of White & Case whose lectures on construction disputes fuelled my passion in construction arbitration. Mark Mordi and Virginie Colauita both of whom continue to provide advice that have helped my career over the years. Also, I am inspired by the incredible team I work with at Aluko & Oyebode.
What advice do you have for other young arbitration practitioners?
This question is dear to my heart because I have first-hand experience of the frustration that comes with seeking your first arbitration appointment after investing so much on education and training. I believe carving a niche or specialist area will do your prospects a lot of good because clients are looking for subject matter specialists/ experts. There is no substitute for building your profile and personal brand. This could be particularly challenging where opportunities are few and far between, but you could look to create those opportunities by publishing articles, volunteering your time in relevant associations and taking up speaking engagements even at personal costs. A lot of referrals/opportunities I have received are from friends and peers so just be nice and respectful.
