NAVIGATING THE CURRENT PANDEMIC THROUGH TECHNOLOGY AND ARBITRATION IN THE FACE OF LAW

BY: IGECHI ICHEGBO, Esq.

 

INTRODUCTION

The Corona Virus Pandemic has ushered a new normal into our everyday lives, which is the application of or dependence on technology as a vital instrument, in transacting business globally. We must ensure that parties to commercial contracts can have a proper and valid window, for the settlement of disputes to ventilate their grievances in respect to their contract, or even stop the commission of illegality in the contract.

Therefore, while technology is being employed in business transactions, this paper proposes the use of technology in arbitrating or resolving the vital legal issues or disputes that may arise from businesses. 

 

MEANING

The English usage of the word “arbitration” began between the 1400s – 1500s. The origin can be traced to the French expression “Abtraction” and the latin noun “Arbitrationem” meaning “Judgement/Will”.

 

DEFINITIONS

The Black’s Law Dictionary {eleventh edition} defined arbitration as a method of dispute resolution, involving one or more neutral third parties who are agreed to by the disputing parties, and whose decision is binding.

• In the case of Mutual life & Gen. Ins. Ltd. V. Kodi Iheme (2010) LPELR-CA/L/461/2006 –arbitration is the reference of a dispute or difference between not less than 2 parties for determination, after hearing both sides in a judicial manner by a person(s) other than a Court of competent jurisdiction.
• The Supreme Court in NNPC .V. Lutin Investments Ltd & Another (2006) LPELR-SC.57/2002- A private method of dispute resolution, in which the parties select an individual(s) who will finally decide the matters in issue following a process agreed upon by the parties, with no or minimal Court intervention.
• In Mainstreet Bank Capital Ltd. vs Nigeria Reinsurance Corporation Plc.(2018) 14 (pt.1640) 423 pg429 ratio2 SC.- the supreme Court defined arbitration as a method of dispute resolution involving one or more neutral third party or parties who are usually agreed to, by the disputing parties and whose decision is binding. The neutral third party is the arbitrator.
• In Brown & Marriot, No.14-4139 (10^th CIR 2015) (D.C.No.2:14-CV-00116-TC) (D.UTAH) the United States of America defined arbitration as – A private mechanism for the resolution of parties which takes place in private, pursuant to an agreement between two or more parties, under which the parties agree to be bound by the decision given by the arbitrator accordingly, after a fair hearing. Such decision being enforceable at law.

Furthermore, Section 57 of the Arbitration and Conciliation Act, Cap A18, Laws of the Federation of Nigeria, 2004 (ACA){herein after referred to as the Act} which is the principal legislation governing arbitration in Nigeria, defines arbitration as a commercial arbitration whether or not administered by a permanent arbitral institution.

“Commercial” means all relationships of a commercial nature, including any trade transaction for the supply or exchange of goods or services, distribution agreement, commercial representation or agency, factoring, leasing, construction of works, constructing, engineering licensing, investment, financing, banking, insurance, exploitation, agreement or concession, joint venture and other forms of industrial or business co-operation, carriage of goods or passengers by air, sea, rail or road.  

Arbitration is a method of Alternative Dispute Resolution {ADR) used to resolve disputes without litigation. It employs a procedure in which a dispute is voluntary, by agreement submitted to neutral third parties called arbitrators, whose duty is to hear the parties in the dispute and make a binding decision.

 

LAWS GOVERNING ARBITRATION

• English Arbitration Act of 1889
• Arbitration Ordinance no.16 of 1914 (codifies later as CAP13 LFN 1958)
• Arbitration and Conciliation Decree No.11 of 1998
• Arbitration and Conciliation Act (CAP19 LFN 1990)

 

HOW ARBITRATION ARISES

Arbitration could arise in different forms, based on the circumstances or existing agreement between parties.

For ease of reference, below are the different ways Arbitration can arise.

1. By an arbitration clause contained in the contract.
2. By decision of parties.
3. During litigation.

At this juncture, I will proceed to discuss the above.

      1. By an arbitration clause

Arbitration arises by virtue of the presence of an “arbitration clause” in a contract. In the case of Felak concept limited vs Attorney general of Akwa-Ibom state (2019) 8 NWLR (Pt.1675) Pg.433 at 435 ratios 1– an arbitration clause is only procedural, in that parties, had agreed that any dispute between them should be submitted to arbitration which, however, does not exclude or limit rights but only stipulates a procedure under which parties may settle their differences. The arbitration clause in a contract, therefore, merely postpones the right of the contracting parties to resort to litigation. To be binding, an arbitration clause must be mandatory, precise and unequivocal.

The major distinguishing factor between arbitration and other dispute resolution mechanisms like mediation, conciliation and negotiation, is that arbitration arises from the contract between parties by virtue of a clause known as the “arbitration clause” as earlier stated, which provides that in the event of a dispute, parties shall first submit the dispute to arbitration. {SEE SECTION 1[1][a][b]&[c]} of the ACA.

      2. By decision of parties

When a contract is executed between parties, disputes are not envisaged at the point of execution. Oftentimes, parties request for arbitration before litigation in order to preserve their business relationships and to avoid the hurdles of litigation.

      3. During litigation.

Arbitration may also arise in some certain circumstances during litigation, wherein the Court orders parties to submit the dispute in the contract to arbitration first, and try to settle before commencing the trial.

 

 

 

AGREEMENT TO SUBMIT TO ARBITRATION

This is inferred from an arbitration agreement. It is usually contained in a clause in the main agreement, or in a separate arbitration agreement.

Section1 of ACA CAP18 (LFN2004) mandates that the arbitration agreement is in writing, in a document signed by the parties or an exchange of letters, telex, telegrams or other means of communication, providing a record of an arbitration agreement.

Section2 of ACA CAP18 (LFN2004) makes the agreement irrevocable except by agreement of parties, or by leave of court.

However, it should be noted that if the parties have not subjected the arbitration agreement to a particular law, either expressly or by implication, then its validity may be judged according to the law of the place of arbitration.

 

RECOGNITION AND ENFORCEMENT OF AN ARBITRAL AWARD

Section 52 of the ACA CAP18 (LFN 2004) provides the grounds for Courts refusing recognition or enforcement of an arbitral award

Under Section 52(a) (ii) of the same act, any of the parties in an arbitration agreement may request that the Court refuse recognition or enforcement of an award.  This is valid when the party against whom it is invoked, provides the court with proof that arbitration is not valid under the law which the parties have indicated should be applied; or failing such indication, that the arbitration agreement is not valid under the law of the country where the award was made.

 

REQUIREMENTS FOR COURT ENFORCEMENT

• An authenticated copy of the arbitral award.
• Original arbitration agreement or a certified copy of the agreement.
• Certified translation into English (in the event that the language for the tribunal wasn’t in the English language).

Arbitral awards are enforced through summary enforcement of award or enforcement by action. The Court only needs to be approached for enforcement and not for recognition. Arbitral awards are automatically recognized.

 

WHAT AMOUNTS TO MISCONDUCT IN AN ARBITRAL PROCEEDING?

• Where the Arbitrator fails to comply with the terms of the arbitration agreement either expressed or implied.
• Where the arbitrator complied with the terms of the arbitration agreement but makes an award which on grounds of public policy, ought not to be enforced.
• Where the arbitrator has been bribed or corrupted.
• Technical misconduct, such as where the arbitrator makes a mistake as to the scope of the authority, conferred by the provisions of the agreement referring the dispute to him. This however does not mean that every irregularity of procedure amounts to misconduct.
• Where the arbitrator fails to decide all the matters referred to him.
• Where in his award, the arbitrator purports to decide matters which have not been included in the agreement or reference for example.
• Where the award contains unauthorized directions to the parties.
• Where the arbitrator has the power to direct what shall be done, but his directions affect the interest of third parties. In Iheanacho vs Chigere (2004) 17 NWLR (Pt 901) Pg.130 at 149, the Court held that an award, pursuant to a customary arbitration, against a third party who was not a party thereto (the arbitration and oath-taking), could not be bound by same.
• Where the arbitrator decided as to the parties rights, not under the contract upon which the arbitration has proceeded but under another contract.
• If the award is inconsistent or is ambiguous or there is some mistake of fact, which must be clear beyond any reasonable doubt.
• Where the arbitrator has breached the rules of natural justice.

What amounts to misconduct in arbitral proceedings is not specifically defined under the Arbitration and Conciliation Act 1988. However, some of the acts which the Courts have held as amounting to misconduct under the common law, are set out in Section 48(a) of the Act.

 

CIRCUMSTANCES WHERE AN ARBITRAL AWARD MAY BE SET ASIDE

• That a party to the arbitration agreement was under some incapacity.
• That the arbitration agreement is not valid under the law which the parties have indicated should be applied, or failing such indication, that the arbitration agreement is not valid under the laws of Nigeria.
• That the party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise not able to present his case.

In the case of ADAMEN PUBLISHERS (NIG.) LTD .V. ABHULIMEN (Court of Appeal, Benin) (2016)6 NWLR Part1509 Page439 Ratio13, the permissible scope of interference or setting aside an arbitration award is set in Sections 29,30,48 and 52 of the Arbitration and Conciliation Act. In the summary of this Section, an arbitration award can be set aside when;

• The arbitrator is guilty of misconduct.
• The arbitral proceeding or award was procured improperly.
• A party to the arbitration agreement is not valid under the law(s), which the parties have indicated should be applied, or under the law of the country where the award was made.
• There is a failure to give proper notice to a party of the appointment of an arbitrator or of the arbitral proceedings, or if a party was otherwise unable to present their case.
• The award deals with a dispute not contemplated by, or not falling within the terms of the arbitration agreement.
• The composition of the arbitral award or the adopted procedure was not in accordance with the agreement of the parties, or with the law of the country where the arbitration took place.
• The award contains decisions on matters beyond the scope of the arbitration agreement.
• The subject matter of the dispute is not capable of settlement by arbitration under the laws of the country.
• The recognition or enforcement of the award is against public policy.

 

 

LEGAL EFFECT OF ARBITRATION CLAUSE IN A CONTRACT

Often times, it is implied that when an arbitration clause is present in a contract, the Court will lack jurisdiction to hear a dispute arising from the contract. However, this is not completely true. The Court in Mainstreet Bank Capital Ltd vs Nig. RE {2018} 14 NWLR {Pt. 1640} 423 at 429 Ratio 5; emphatically stated that arbitration clause in a contract does not necessarily oust the jurisdiction of Court to entertain the matter in dispute. It is only a condition precedent, which parties to the dispute must adhere to before commencing the action in a Court of competent jurisdiction. In other words, the Court will not necessarily decline its jurisdiction, rather it will stay the proceeding and direct parties to explore the arbitration, before coming to the Court.

Section 5 of the Arbitration and Conciliation Act, is very instructive here. It provides:

“If any party to an arbitration agreement commences any action in any court, with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the Court to stay the proceeding.”

 

ARBITRABLE DISPUTES

• Disputes submitted to arbitration must be justifiable issues triable by a civil Court.
• They must be matters in which a person can contract or enter into an agreement on terms with another person/entity.
• When a party admits liability of a party’s claim against him, such claim is no longer arbitrable.
• Others are not arbitrable on account of express provisions of the law, illegality and public policy. Examples are criminal offences, illegal contracts, gaming and wagering contracts, election petitions and divorce petitions.

 

APPOINTMENT OF ARBITRATORS

Parties subject to the contract giving rise to arbitration, are at liberty to appoint arbitrators of their choice. However, by virtue of Section 7 {3} of the Act, where a party fails to make such appointment, a party may apply to the Court to make such an appointment.

Usually, the arbitrators are three {3} in number. Parties are entitled to appoint an arbitrator each, and the two arbitrators so appointed, appoint the third.

 

REQUIREMENTS OF ARBITRATORS

• The Act requires that an arbitrator must be independent and impartial.
• If the arbitration process is governed by a binding contract, the number of arbitrators to sit on the tribunal should be specified in the contract.
• An arbitrator must disclose any circumstance that is likely to give rise to justifiable doubts about their independence or impartiality.

 

ADVANTAGES OF ARBITRATION

Parties often seek to resolve disputes through arbitration because of perceived potential advantages over litigation. Firms, companies and organizations often require arbitration with their clients/customers, but ironically prefer the advantages of Courts when it narrows down to competitors.

• As opposed to litigation where parties cannot choose the judge, arbitration gives room for the parties to choose their own tribunal.
• Arbitration is faster than litigation.
• Arbitral awards are easier and faster to enforce.
• The language for the arbitration can be chosen as opposed to litigation where the generally accepted language of the court is the English language.

 

 

DISADVANTAGES OF ARBITRATION

• As opposed to litigation, the rights to appeal and review are limited.
• Where the arbitration is mandatory and binding, the parties waive their rights to access the Courts automatically.
• Discovery may be more limited in arbitration or entirely non-existent.
• Although arbitration is usually thought to be speedier, in the event of multiple arbitrators on the panel; juggling their schedules for hearing, dates can lead to delay.

 

CONDUCT OF ARBITRAL PROCEEDINGS IN THE LIGHT OF CORONA VIRUS REGULATIONS

In any arbitration, the panel has a duty to conduct the process in such a manner that all parties are given equal opportunities to present their case. Section 15 of the Act provides that arbitration proceedings shall be in accordance with the Rules set out in the first schedule of the Act.

The operative word in Section 15 above is “shall” which carries a mandatory obligation that arbitration proceedings must be in accordance with the Rules of the Act. The Supreme Court has without mincing words held in INEC vs. Asuquo {2018} 9 NWLR {Pt. 1624} 305 at 317 Ratio 12 that whenever “shall” is used in a provision, it carries a mandatory or compulsory effect.

Though a comprehensive reading of the articles set out under the Rules does not specifically contemplate a situation where parties and the arbitral tribunal will be unable to meet physically for the purpose of the arbitral proceeding, the Rules nonetheless are flexible enough to accommodate situations such as the one occasioned by the Corona Virus Pandemic regulations which advocate social distancing and less physical contact to curtail the spread of the virus.

Article 15 {1} of the Rules provides thus: “Subject  to these Rules, the arbitral tribunal may conduct the arbitration in such a manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case”

The above provision is in tandem with section 15{2} of the Act which provides that “where the rules referred to in subsection {1} of this section contain no provision in respect of any matter related to or connected to any particular arbitral proceedings, the arbitral tribunal may, subject to this Act, conduct the arbitral proceedings in such a manner as it considers appropriate so as to ensure fair hearing”

Also, Article 16 provides that “unless the parties have agreed upon the place where the arbitration is to be held, such place shall be determined by the arbitral tribunal, having regard to the circumstances of the arbitration”.

The community reading of section 15{2} of the Act and Article 15{1} of the Rules to the Act is quite explicit to the extent that it creates room for the parties and the arbitration tribunal, to deploy the use of technology in the hearing or conduct of arbitral proceedings, where it is impossible to converge physically for the purpose of arbitration as the circumstance may require.

Furthermore, the objective which the Act and the Rules thereto seek to protect, is that fair hearing is reached and parties are given equal opportunity to present their case in a forum best suitable, in the prevailing circumstance of the case.

In contrast to litigation wherein section 36 of the Constitution of the Federal Republic of Nigeria, 1999 {as amended}, makes it mandatory for court proceedings to be in the public to meet the requirement for a fair hearing, the Arbitration and Conciliation Act simply puts the parties and arbitrators in a position to determine the method they wish to employ in arbitration proceedings, as long as parties are given equal opportunities to be heard.

In light of the above, the virtual hearing of arbitral proceedings is not unconstitutional. As long as the parties hereto consent to it, the proceedings should be conducted online via a medium agreed upon by the parties, whether by virtue of their contract or by inference (which can be extracted from correspondences, suggesting that parties have considered the circumstances imposed by the Corona Virus restrictions). These mediums could be Webinars, Zoom conference calls, Skype conference calls, Microsoft Teams etc.

 

CHALLENGES ASSOCIATED WITH THE USE OF TECHNOLOGY IN ARBITRAL PROCEEDINGS

Though technology is changing the face of information and access to information globally, some countries; particularly the third world countries, are yet to fully embrace the use of technology, due to high cost of gadgets and access to the internet. Other reasons include illiteracy, poor internet network and technical know-how in the usage of the internet. While the internet can be accessed freely and easily; even in public buses, trains or pubs in some climes,  the case is not the same in other undeveloped or developing climes. This really poses a challenge to the use of technology in the arbitration of disputes.

 

 

 

CONCLUSION

While people are finding it difficult to move from one place to the other; due to the coronavirus pandemic with international flights grounded in some countries and with the coronavirus prevention regulations, it has become necessary to adopt the use of modern technology in settling disputes that may arise from time to time.  Positive results could still be achieved without finding oneself at the risk of total loss in both business and safety of life.