Personality of the Month- July 2020

Personality of the Month- July 2020

Personality of the Month- July 2020

Name of arbitrator:

Mrs Funmi Roberts

Education, awards:

Education:

  • 1981: University of Ife, Ile Ife, Nigeria (2:1)
  • 1982: Nigerian Law School, Lagos (2:1)
  • 1990: Awarded Fellowship of University of Ife for LL.M

Awards:

Funmi is also the recipient of many awards.

Countries qualified to practice:

Nigeria

Language(s):

English

Name of Firm:

Funmi Roberts & Co.

Area(s) of specialisation:

Corporate and Commercial Law, Construction & Real Estate

Institutional affiliation(s):

Arbitration and ADR-related only-

  • Fellow, Chartered Institute of Arbitrators and
  • Fellow, Institute of Construction Industry Arbitrators
  • Member, ICC Commission on Arbitration and ADR, Paris
  • Co-Chairman of the Lagos Chamber of Commerce International Arbitration Centre
  • Member, Global Panel of Mediators, Centre for Effective Dispute Resolution (CEDR, U.K)
  • Member, London Court of International Arbitration
  • Member, Guild of Adjudicators of Nigeria
  • Member, Board of Directors of Lagos Court of Arbitration (inception to 2019)
  • Member, Governing Board, Oyo State MultiDoor Courthouse
  • Member, Arbitral Women
  • Member, International Bar Association (Arbitration Committee)
  • Member, Panel of Neutrals of:
  1. National Electricity Regulatory Commission (NERC)
  2. Kigali Centre for International Arbitration, Rwanda
  3. London Court of International Arbitration
  4. Global Panel of Mediators of Centre for Effective Dispute Resolution (CEDR, U.K)
  5. Lagos Multidoor Courthouse
  6. Oyo State MultiDoor Courthouse

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

After a brief stint as a lecturer in the Faculty of Law, University of Ibadan, Ibadan Oyo State, Nigeria, Funmi worked in the law firm of Ogunkeye and Ogunkeye working on litigation and commercial briefs before founding Funmi Roberts & Co. (FRC), a firm of Solicitors & Advocates. She currently heads the Alternative Dispute Resolution (ADR) Unit of the Dispute Resolution Department of the firm, where she combines her extensive legal background with proven conflict management systems design experience to assist clients to effectively and efficiently manage different types of disputes.

Funmi headed the FRC team that partnered with another law firm to harmonise the dispute resolution landscape of the National Electricity Regulatory Commission. She is currently a member of the NERC Panel of Neutrals.

Funmi is the Chairman of the National Committee on the Repeal and Reform of the Arbitration and Conciliation Act, 1988 and the Bill is currently before the National Assembly. She is also currently a member of the committee working on the revision of the Arbitration Rules of the Institute of Construction Industry Arbitrators and the committee on adaptation of the training materials of the Chartered Institute of Arbitration, Nigeria Branch.

In recognition of her experience and contribution, Funmi Roberts was invited to the ICC Commission on Arbitration and ADR.

Drawing from your experience as the Chair of the Drafting Committee on the Bill to repeal and re-enact the Arbitration and Conciliation Act in Nigeria, what are the essential changes in the Bill, and how will they improve arbitration in Nigeria once passed into law by the parliament?

On 23 September 2005, the former Attorney General of the Federal Republic of Nigeria, Chief Bayo Ojo S.A.N., FCIArb, a notable member of the arbitral community inaugurated a 15-member National Committee on the Reform and Harmonisation of Arbitration and ADR Law. Late Dr J. Olakunle Orojo C.O.N., O.F.R., FCI. Arb, led this committee (‘the Orojo Committee’).

The Orojo Report identified the imperatives for reform and modernization of the Arbitration and Conciliation Act in Nigeria, (ACA). These include the fact that the ACA has failed to achieve one of the purposes of its enactment. This is to implement Nigeria’s treaty obligations under the New York Convention, as well as exhibit a clear intention to incorporate the basic concepts of the UNCITRAL Model Law on International Commercial Arbitration, 1985 (“the UNCITRAL Model Law”). Other issues include inelegantly drafted provisions that have created confusion and generated conflicting or retrogressive judicial decisions. Contradictory provisions, outmoded concepts and definitions have prevented the ACA from keeping pace with contemporary trends in international trade and commerce, etc.

These are some of the issues the committee I chair had to deal with. Inconsistencies between the substantive law (S.4 and 5, etc.) have been resolved. The power of the arbitral tribunal to order interim orders of protection has also been greatly enhanced. More importantly, the committee introduced new concepts agreed within the arbitral community to improve its value within the civil justice system. For example, the Bill for the Repeal and Re-enactment of the Arbitration Act made the default number of arbitrators, one, recognised 3rd party funding, provided a peer review mechanism, called an Award Review Tribunal, excised the provision that empowers the court to remove an arbitrator or set aside an award on the ground of the ubiquitous ‘misconduct’, introduced the concept of Emergency Arbitration; pauses the applicability of the Limitation Act/law when the arbitral process is ongoing. Another innovative provision is the definition of ‘Court’ is now defined as a judge in chambers, thereby facilitating expeditious handling of arbitration-related applications.

Of significant importance is also the fact that conciliation has been replaced by mediation. The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) opened up for signature on 7 August 2018. Nigeria was one of the first countries to sign on the first day. UNCITRAL had realized that conciliation was rarely a dispute resolution mechanism of choice, and the entrant of mediation proved a death knell for conciliation. The Bill also includes Guiding Principles of Interpretation. These principally urge that in the interpretation of the provisions of the Bill, regard should be had to the international origin of arbitration, the need to promote uniformity in its application, and observance of good faith.

The 8th International Arbitration Survey on ‘The Evolution of International Arbitration’ carried out by the School of International Arbitration at Queen Mary University of London in collaboration with White & Case LLP (‘the Queen Mary Survey’), ‘identifies the principal drivers and stakeholders that the arbitration community expects to influence the future direction of international arbitration.’

In the report, one of the drivers for the choice of the seat of arbitration includes users’ perception of the formal legal infrastructure, including the national arbitration law of the seat of the arbitration. The 2010 and 2015 surveys also support this contention.

The significant foreign direct investments into the Nigerian economy is an indication that there will be a rise in the number of arbitral proceedings to deal with related disputes, with parties having to determine the seat of their arbitrations. Whether Nigeria can compete favourably in Africa depends on what she does to upscale her national arbitration law, a significant issue in the bid to develop an attractive value proposition that will sway the decision-makers.

As the Co-founder of the COVID-19 Alternative Dispute Resolution Initiative (CADRI), what are the important objectives of this initiative, and how has it helped parties seeking alternative dispute resolution during the pandemic?

The COVID-19 Alternative Dispute Resolution Initiative (CADRI) is a scheme designed to support African businesses, given the adverse economic impact that the COVID-19 pandemic has had on economies in Africa. CADRI provides a platform where companies can access alternative dispute resolution services at significantly lower costs than they would ordinarily incur. The overriding objective of the scheme is to support sustainable economic growth on the African continent by assisting businesses to overcome challenges in dealing with disputes during this period of the COVID-19 pandemic. CADRI is not an institution. Instead, it is a concept administered through existing arbitral institutions. The CADRI scheme applies to the following categories of cases:

Category 1: Cases where the parties have agreed to submit the dispute for resolution under the CADRI scheme.

Category 2: Cases where the parties have agreed to resolve the dispute under the CADRI scheme rather than under a previously agreed dispute resolution method.

Category 3: Existing litigation cases whose resolution are delayed because of the negative impact of COVID-19 pandemic on courts’ operations, and parties have agreed to stay litigation, and submit their disputes for resolution under the CADRI scheme.

Parties who agree to have their dispute resolved by arbitration or other forms of ADR under the CADRI scheme will enjoy a significant reduction in the cost of the dispute resolution process. The CADRI administrating institutions will engage the parties’ representatives and the arbitrator, adjudicator, expert, mediator or other neutral to establish a reasonable fee having regard to (a) the economic and financial hardships caused by the COVID-19 pandemic; (b) the nature of the issues in the case; (c) the amount of time and effort that will be required to resolve the dispute and (d) the prospect of resolving the dispute on an expeditious basis. The current administering partners of CADRI are the Lagos Chamber of Commerce and Industry Arbitration Centre (LACIAC) covering Lagos State, Oyo State Multi-Door Courthouse, covering Oyo State and environs, while ICAMA, the International Centre for Arbitration and Mediation, Abuja currently covers Abuja and other parts of the Northern parts of Nigeria. CADRI has put together an international panel of neutrals to deliver on its promises. The benefits of resolving disputes under the CADRI scheme are many. These include the following:

  1. CADRI will afford a significant reduction in the costs of dispute resolution to parties who submit their disputes for resolution under the scheme;
  2. To achieve reduced costs, the CADRI administering institution has established a panel of experienced international arbitrators, mediators, adjudicators, experts and other ADR. They have committed to support African businesses by providing their services at significantly reduced costs, subject to their availability and the absence of any conflicts;
  3. In determining the fees of the arbitrator or other ADR expert, the implementing institution will not apply the usual fees contained in its Rules. In every such case, the administering institution will consult with the parties’ representatives and the arbitrator, adjudicator, expert, mediator or other neutral to establish a reasonable fee having regard to:
  • the economic and financial hardships caused by the COVID-19 pandemic;
  • the nature of the issues in the case;
  • the amount of time and effort that will be required to resolve the dispute and
  • the prospect of resolving the dispute on an expeditious basis.

There are arguments in Nigeria on the constitutionality of virtual hearings, what are your thoughts on virtual hearings in arbitration?

In the cases filed by Lagos and Ekiti States, the Supreme Court of Nigeria did not make a definitive statement on this matter, as the arbitration community would have benefited greatly from their pronouncement. Many arbitral institutions have provisions that encourage the use of teleconference during the proceedings. The advent of the pandemic is merely an accelerant of the future. Be that as it may, the Arbitration and Conciliation Act, the law governing arbitration in Nigeria contains enough provisions to encourage a bold and proactive tribunal to exercise its procedural discretion by conducting virtual proceedings, without compromising on its primary duty to conduct the proceedings in a fair and just manner. For example, Section 15 (2) empowers the arbitral tribunal to adopt appropriate procedure where there is a lacuna in the Arbitration Rules. This provision is a powerful tool in the hand of a tribunal intent on adhering to its mandate to conduct the proceedings expeditiously, and fairly. Transactional lawyers would be in breach of their duty to their clients if in drafting dispute resolution clauses, they do not make provisions for virtual proceedings. I further advise the incorporation of one of the many new protocols for virtual hearings such as that of the African Arbitration Academy.

What advice do you have for young practitioners who are interested in developing a career in arbitration?

In the past, those who aspired to be arbitrators/ADR practitioners had to travel abroad to participate in the various trainings which are now readily available locally. These were trainings offered by institutions such as Chartered Institute of Arbitrators (CIArb) headquartered in London, International Chamber of Commerce in Paris, Centre for Effective Dispute Resolution (CEDR). CIArb offers different levels of membership through different pathways.

There are now various local arbitral and ADR institutions, including universities that offer trainings locally. They include CIArb, Nigeria Branch, NCMG, Lagos Court of Arbitration, ICMC[1], Faculty of Law, University of Ibadan.

The CIArb admits members into fellowship after attaining the age of 35 years. This is the age you are expected to have attained the necessary maturity to exercise sound judgement. While waiting for this to happen, you should continue to garner experience, acquire knowledge and bring out the spirit of volunteerism in you by volunteering to organize events, a veritable pathway to meeting people. Endeavour to be an active member of the various platforms created for young arbitrators.

Finding a mentor committed to sharing and nurturing your ambition to be an ADR expert is most useful. Your mentor should be a strong ADR advocate and practitioner who can find opportunities for you to learn and network within his space. This means you have to be strategic in your choice of a mentor. You should make the relationship mutually beneficial. Above all, develop a hefty dose of patience while maintaining a high level of visibility.

 

 

 

[1] Institute of Chartered Mediators and Conciliators

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