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NBA Institutionalised Arbitration Practice In Nigeria - AgbakobaOlisa Agbakoba, SAN, is the former President of the Nigerian Bar Association. He is the Principal Partner in Olisa Agbakoba & Associates. Agbakoba is also the second vice president of the Nigerian Institute of Arbitration (NIA) and is the founding president of the Nigerian Chamber of Shipping (NCS). As human rights activist, Agbakoba experienced firsthand the brutality of the Abacha regime. He has been detained repeatedly for his pro-democracy activities; including a six-month stint in 1993 following the military coup that annulled the June 112 presidential elections. His multi-sector law firm is involved in diverse areas, including, shipping, oil & gas, development law, litigation, alternative dispute resolution, international advisory services, among others. In this interview with Wale Igbintade, he speaks on his life after office and the need for the establishment of arbitration institutions in Nigeria. Excerpts Since you left the Nigerian Bar Association as president, not much has been heard from you, what have you been doing? Since I left the NBA, I believe I have been more organised and more predictable and I am beginning to do new things, which I think are as important as far as am concerned as the work I did in NBA. Essentially, I am a member of the Vision 2020 National Steering Committee, which was set up to challenge Nigerians and all the key actors on whether it is possible for Nigeria to attain the status of 20 most industrialised countries in the world, which is 12 years away. There is a particular sub-committee, which I am very interested in and that is the Financial Services Sub Committee. Governor Soludo of the Central Bank chairs this committee. The committee is dealing with how the Financial Services Sector can be an optimal sector to lead Nigeria to this goal by 2020. To do that, we are looking at the legal framework, we are looking at regulating institutions and we are looking at laws generally. I think it is very apt now that there is an international financial crisis. So the model we are going to learn from, the law that we are going to learn from were those of the IMF, the World Bank, WTO and the multilateral agreements that control the International Financial Capital. But now the Chinese have revised the international economic order. China was the country that was socialised while America was the country that was privatised. Now it is the other way round, America and the Western countries are socializing, they are buying banks and the Chinese are privatising. So there is a peculiar economic turmoil in the world and I think it presents big challenges for Nigeria. So, as the Chairman of the Legal Implementation Committee of the Vision 2020 financial services sector project, our challenge now is, what can we add to the Nigerian financial landscape that would boost development, which is the work I am presently engaged in. We need to ask ourselves, why is it that India, Dubai, Brazil, Malaysia, Singapore, these so called developed but still developing countries, how come they have managed to perfect a formula for development, which we have not. The answer lies in building your own institutions from your own perspective. There is no one prescription like the World Bank tells us. You see what is happening by trying to liberalise the market, which they tell us to do, their market collapsed. One thing that I know which must come out strongly in legal fame work I am developing is that, we must do it from the point of view of the Nigerian experience. I was happy that about three weeks ago, a national newspaper had the argument on both sides in relation to arbitration. The argument by our friend in the Chartered Institute of Arbitrators UK branch and the Chartered Institute of Arbitrator Nigeria proper is as far as I am concerned mis-focused in the last 30 years. Arbitral practice is not in Nigeria for the simple reason that we don't have arbitral institution. So when I was at the New York convention on arbitration, I had interactions with the Chinese and as President of the NBA, I travelled to China. On return, I briefed the Federal Attorney General and the immediate past Governor of Lagos State. I am happy that governor of Lagos State has now established a Lagos Court for Arbitration. That is very important because it is the very first step in institutionalising arbitration practice in Nigeria. What does Nigeria stand to benefit from arbitration institution? That is a good question; just recently I had a client who wanted me to go to London to appear as an expert witness. I was shocked that everything about the case is Nigeria. The vessel is in Nigeria, it was used by Shell, paid for by NNPC but we are yet paying arbitration experts in the United Kingdom and I'm now forced to spend money and fly on British Airway and go to the UK. So, a country will not develop if you don't close all these gaps. Our challenge is to look at economic systems and to see what model will best enhance our development. For instance, the Chinese have a peculiar type of privatisation law. What they do? They know that government is not good at business, so the Chinese government buys what we popularly call here Hiace. In China, it is called Chinbe because they have an exclusive franchise from Toyota. Hundred percent of the shares is owned by the Chinbe's Motor Corporation but it is run as a private company. So that you will not even know that the government owns it. That model of privatisation has worked. Our own model, which the Americans called short therapy, has failed. The legal framework has collapsed, the institution has collapsed and we are where we are today. The result is that, few people have benefited from the resources of state owned enterprises in the last 30 years. How do you feel about the proposed establishment of Lagos Court of arbitration? I was very thrilled when I got the notice for the public hearing on Lagos Court of Arbitration. There is another one being planned at the national level, it is called the National Court of Arbitration. When you put these things in place, it will mean that when our Western friends tell us to come to London, we will say no. This is because we are going to put in a clause to read "arbitration in Lagos" in all our agreements and that means we will begin to have administrators and their allied services. A country does not develop by not understanding what its economy is. In United Kingdom for instance, they have a very advanced educational system, which they market worldwide. It is worth about £8 billion a year, just from education and they don't joke with foreign students. They charge you and those incomes they use to run their system. It is fitting that something should be said about NBA, it should be given the credit for pioneering institution arbitration in Nigeria but it refused to grow. The fact is that the Nigeria Bar Association institutionalised arbitration practice in the country. So how we can enhance arbitration practice in Nigeria We have to start somewhere. A lot more need to be done in strengthening the ethical quality of lawyers and that is why as the President of the Nigeria Bar Association, I stressed the need for the Attorney General of the Federation to convey the general meeting of the Bar, which is a body regulating legal practice in Nigeria. Contrary to the general wisdom and convention, the NBA is not as strong a body as you might think. The NBA does not control its finances; neither can it make any law. The Association depends on the Attorney General of the Federation. If you look at the Legal Practitioners Act, the Attorney General's role in the affairs of the NBA is substantial. Still on arbitration, recently there was a dispute between the organisers of Cora Awards and the Cross River State Government. While Cora Award is claiming that there is a clause in their agreement that says parties should resolve all disputes through arbitration, the Cross Rivers State Government insist they must go to court. How do you see this face-off? It is wrong; again this is part of the challenges of the development of arbitration. In fairness to arbitration practice in the West, they understand the nature of business hence they developed alternative ways of resolving business disputes. As you know, arbitration is the key to robust business hence Western society depends very strongly on the arbitral agreement. In fact, once you have signed arbitration agreement, you cannot resign from it, you can't call it back and you are bound to the proper venue. So the simple answer to your question is that the Judge was wrong, immediately there is an arbitration clause in an agreement, the proper thing would be to refer it to the arbitration except unless they could show a special reason why they would not go to the arbitration venue. Number one, arbitral practice in Nigeria is weak as we all know, number two, we have now managed to begin to work on the road to institutionalising arbitration practice, number three, the fallout of number one and number two is that, there would be a whole new learning course for everybody. These are the three key pillars of arbitral practice for arbitrators, for counsel, and for everybody. Right now, lawyers don't quite understand some of the vital elements of arbitration. So we will keep getting this confusion. Only recently in a case that involved Shell, the Supreme Court said that arbitration once signed is binding. There was that conflicting doctrine as to whether if you signed you can also un-sign. So my point here is that all these teething problems would be solved when the bedrock for arbitration practice is solid. This will only when we have a National Arbitration Commission and by building arbitral institutions. Is there any relationship between development of law and economic development? Yes there is, the fact is that law plays a strong role in the way a nation develops and a nation develops simply by providing the basic things of life. What Nigerians would like to see is infrastructure, strong policing, efficient courts, access to credit, housing, and employment. Nigeria is very poor but at the same time very rich. The reason why Nigeria has not grown like other developing countries is that they have not realised their potential. It is unbelievable that there is no law that supports consumer lending. There is also no law that supports the bank making the right and informed decision to give people loans. When you go to take a loan, how do they know that you're credit worthy? So banks don't give loans because they cannot tell. So they give to the likes of Dangotes or people that they know. So banks are selective and society does not grow by picking and choosing whom you give loans. Credit is the oxygen that drives an economy. The banks in Nigerian are not giving loans, Nigerian banks are not doing banking, they do round tripping until Soludo came. They now found a new way by doing margin lending. So if a bank has N30 billion, rather than give loan to basic customers they channel the money through stockbrokers. During your term as the President of NBA, Mrs. Mudashiru, the widow of the former Military Administrator of Lagos State, sent a petition to your office against a senior member of the Bar, how did you handle the petition? Her complaint is that the lawyer in the case was the Attorney General of her late husband and that there is a conflict. Aside from that she alleged that there was a forged affidavit by one lawyer in the Court of Appeal. She produced court processes but we can't look at it. When we received her petition, I looked at the case file and I saw there was a ruling striking out her petition because the same complaint she brought to the NBA she also filed in the court and we cannot usurp the powers of the court. But she denied that she filed same matter in the court? I am telling you the truth of what actually happened. Look I have no reason to lie; that is just the truth of the matter. That is exactly the case and unless she has withdrawn the case that would be a different thing entirely Sir, many people know you as human rights activist, in fact you established the Civil Liberty Organisation. But it seems you are no longer very active in human rights matters. What has changed? What has changed is the approach but I have not lost sight of key element of inclusion and that is why my NBA administration has been the most inclusive. I'm not sure I have to wear human rights cap to continue to have that express agenda. Development law is wider than human rights. In the development discussion, you have governance, electoral process, constitutionalism, strong laws, human rights everything is inclusive. In fact, it is a total package and that is why I like development. It is the most comprehensive agenda you can ever think of. You can see that the Obama's agenda is I am going to elevate Main Street and I'm going to tax Wall Street. Wall Street here refers to corporate America while Main Street means people, who march on the common street that is development. If I were in America that is the type of agenda I will be driving because it will embrace everything. So, you find that people of my ilk tend to be on the left. I have never pretended to be of the extreme left I have always been on the center left. So if I were in the Democratic Party I will be in the center left. Exactly where Clinton was, Obama is. In Nigeria there are some people who are more radical, you have the likes of Gani Fawehinmi a born radical; you have Femi Falana and you have Bamidele Aturu. We are all of the same left camp; in fact they call me a decent liberal. So, development is the key of the game and that is why I am in development. In fact it is my new cap. Considering the confusion that attends the NBA conference annually. With the benefit of hindsight, what is the proper solution to this problem? That is a very good question. Do I think my formula would have pulled off a good conference? I thought so. Did the formula in Ilorin work? The answer is yes, but there were problems. Some of these problems are organisational, and some are cultural but the biggest challenge that the NBA faces is that, as it becomes popular, part of the challenges was that people wanted to attend the conference. I was in South African airport when one of my former staff asked me why he did not get conference bags even though his office paid N2million. But their money hit our account September 4 and that was after the conference. On the July 1st this year, I asked the Director of Administration of the NBA, [Osita] for the record of registered participants. Do you know the number? Just 100. So I was scared but suddenly six thousand participants registered for the conference. You see the way we register also create problems. Another problem is facilities, when my daughter did her wedding; I was shocked that in Lagos, a mega city you can hardly find a venue that will seat 2000 people. Then there is this attitude of people not wanting to pay their way into the conference and it is a big problem. In Onitsha National Executive Council (NEC) meeting, I said asking lawyers to pay N5000 for a week is not possible. If you charge a one-year lawyer N5, 000 and he practices law at Ozubulu (a town in Anambra State) he will tell you that his entire income in a year is just that amount. Then look at the conference bags. You can't plan for conference bags when you have no idea how many people are going to turn up. So you have 15, 000 people turned up and you have only 8000 conference bags. Essentially, the conference thing requires total reform. I think from what we have seen, a major conference reform should take place. Fees will go up, the number needs to go down.
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