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LAW PERSONALITY INTERVIEW WITH MRS. DOROTHY UDEME UFOT

 

Question 1

Nigeria’s profile in international arbitration is still regarded as very low. This is in spite of the fact that arbitration practice has taken a quantum leap in the country. You are a member of the International Chamber of Commerce (ICC) International Court of Arbitration in Paris and the ICC Commission on Arbitration. What steps can be taken to shore up Nigeria’s profile in international arbitration?

This is a very wide question but I will try to answer it as briefly as possible. There is no doubt that arbitration practice has taken a quantum leap in Nigeria lately. When you talk about Nigeria’s profile in international arbitration, I believe you mean the image of the country in terms of its perception by the international arbitration community. Much as I concede that much still needs to be done to shore up our profile internationally, I really would not agree that our profile is as low as you put it. The key issues in terms of a country’s image or profile as you term it are two fold. The first is what the country is doing internally as in its arbitration legislation, the arbitration bodies in the country, the practitioners, etc. the second is international, here you want to look at the important treaties that the country has signed, the international arbitration bodies or institutions which has Nigerians as its members such as the ICC International Court of Arbitration which you have just mentioned and also the work that these Nigerians are doing in those institutions and organizations.

In my opinion, Nigeria is doing very well in terms of legislation. We have the Arbitration and Conciliation Act, the Nigerian Investment Promotion Act, which prescribes arbitration as a dispute resolution mechanism. Also the NLNG Act, the Petroleum Act, to mention just a few. On the international scene, the New York Convention on the Enforcement of Foreign Arbitral Awards, 1958 is today regarded as the most important treaty in international arbitration.

A key factor in determining a country’s rating in international arbitration is whether or not that country is a signatory to the New York Convention. This is very important. Nigeria ratified this treaty as far back as 1970. We have not only signed the treaty, the convention is fully implemented in our Arbitration Act. So with legislation, I believe we are doing fine. Nigeria has also implemented the World Bank Convention on the Settlement of Investment Disputes 1965. This Convention is also part of the laws of the Federation of Nigeria. So I believe we are fine as far as legislation is concerned.

Now in terms of shoring up Nigeria’s image internationally, here the factors are many but one of the most important of these factors is what our superior courts are doing in terms of the enforcement of arbitration agreements and foreign arbitral awards. I also believe that our courts are doing well. Barring the length of time it takes for matters to be concluded in the courts, most of our judges understand the issues when it comes to enforcement of arbitration awards. There is generally a pro-enforcement bias by our courts, what I mean by this is that Nigerian courts will invariably enforce arbitration awards unless there is something radically wrong with the award.

Our practitioners also have to be active internationally and volunteer to participate in arbitration projects going on around the world. That is one sure way of putting the country squarely on the map internationally. For instance, 2008 marked the 50th anniversary of the New York Convention and many international arbitration bodies and institutions embarked on various projects involving practitioners from all over the world to commemorate this very important event. The United Nations and International Bar Association jointly organized the 11th World International Arbitration day in New York in February, 2008. I participated actively as one of the speakers at that event. There were arbitration practitioners from over 50 countries, many Nigerian practitioners were there. I seized that opportunity to tell the international arbitration community what progress Nigeria is making as far as international arbitration is concerned. The ICC Commission on Arbitration on its part set up a task force to review the world wide implementation of the New York Convention by signatories country, I participated in the project and gave the perspective of Nigeria. The outcome of that project will soon be published. It will be an international document in which Nigeria will be featured alongside other countries of the world. It is a huge project and very tasking. You see when you are writing on behalf of your country, but must be very sure of your facts and figures. A lot of research work must go into it, because an international document will be produced at the end of the day. I also participated in IBA/UNCITRAL Project on the world wide implementation of the New York Convention. The journal of International Arbitration, which is one of the most influential journals on International Arbitration, dedicated its December 2008 edition to celebration of the 50th Anniversary of the New York Convention. It invited practitioners from all over the world to contribute articles to this special edition on the New York Convention. I wrote on the New York Convention on the Development of International Arbitration in Nigeria. That edition of the journal is currently in circulation all over the world. Nigeria features there. These are some of the ways we can shore up our country’s profile. They are definitely not exhaustive, but the bottom line is that we must participate. Our voices must be heard and our faces seen internationally.

Question 2

From what you have just said, Nigeria has ratified the New York Convention and the World Bank Convention (ICSID) for many years now, but to the dismay of many of the country’s arbitration practitioners, most arbitral proceedings still take place in Paris, London, New York and of recent India. There are many arbitration centres in Nigeria now and they appear under utilized. What is responsible for this? Why are these proceedings not taking place in Nigeria? Given the benefits that accrue to the countries where these international arbitration proceedings take place, such as revenue and even tourism to mention these two, what can be done to ensure that such high profile arbitrations take place in Nigeria?

You see the choice of where an arbitration takes place is purely that of the parties to the arbitration agreement. It is called party autonomy. The parties decide on what they want and where they want to go, but something informs the parties’ decision to have the seat of their arbitration in a particular country.  You mentioned Paris, London, New York and of recent India. I think you left out the United Arab Emirates, in particular Dubai, which is fast becoming a very attractive destination for international arbitration.

One of the key determinants of the parties’ choice of the sea of their arbitration is whether or not the country is a signatory to the New York Convention on the recognition and enforcement of foreign arbitral awards. When parties succeed in an arbitration, they are not really interested in that paper, I mean the judgment. In arbitration, the judgment is called an Award. They are interested in the money you have awarded to them and not the paper judgment. It is expected that the loser will voluntarily honour the award and pay. If he refuses to pay, you cannot take the law into your hands. A civilized way out is to approach the courts for the recognition and enforcement of the award. One major consideration is, will the court enforce the award? How long will it take for the successful party to get his money? So here the parties look at the judicial system, how long the enforcement proceedings will take. They take the country’s perception of corruption seriously into consideration, they consider the infrastructure, the roads, the hotels, the airport, the security and the availability of qualified arbitration practitioners in the country, because there may be need to rush to court for an interim measure of protection. For example, if the subject matter of the dispute is a perishable commodity, they may need a court Order to quickly sell the goods. So the parties generally look at the support they are likely to get from the courts of the seat of the arbitration. If they are not sure of these factors, they will not go there. To be attractive to international parties we must deal with these issues. To this end we must really commend the infrastructure drive of the Lagos State Government. They are doing a good job. We must deal with the Niger Delta issue. A lot of arbitration involving Nigerian parties are doing on in all these jurisdictions that you have mentioned the United Arab Emirate only ratified the New York Convention in 2006, but Dubai today is no doubt one of the internationally recognized arbitration centres. The 12th world arbitration day is taking place in Dubai next week. Arbitration practitioners the world over are going to converge in Dubai for this international conference. In terms of tourism, you cannot get any decent hotel right now in Dubai. They are all fully booked.

In terms of the underutilization of our arbitration institutions, I do not think they are really underutilized. Take the Lagos Regional Centre for International Commercial Arbitration for instance, for the centre to be active; the parties must agree in their contract to use the arbitration rules of the centre and for the centre to administer their arbitration in the event of any dispute arising. Now, to ensure that the centre becomes as active as the Cairo and Kuala Lumpur centres, the Nigerian Government issued a circular in 2004 directing that all international and domestic contracts entered into by ministries, government parastatals and extra-ministerial agencies should contain a provision for the settlement of dispute. Under the rules of Regional Centre for International Commercial Arbitration. This was very proactive of the Nigerian Government to ensure that international arbitration involving Nigerian parties, particularly Government and Government agencies take place in Nigeria. This is a step in the right direction but this is not enough, we need to address other issues which I have mentioned to be attractive to international parties.

 

Question 3

One impression people have about the ICC is that it deals only with high profile cases involving millions of dollars. Does it mean that those with small claims are shut out of the jurisdiction of the court?

This is a very wrong impression. The ICC deals with all claims, small, medium and large. The ICC court does not turn back parties with small claims. No, not at all. I have been in that court since 2006 and nothing like that happens. The parties know what their issues are; they know what they are claiming. If they approach the court, the court will administer their arbitration. There is a scale of fees to be paid by the parties depending on the value of the dispute. Although the work of court is absolutely confidential, the scale of fees is a public document so I can talk about it. What the parties pay as administrative fees depends on the value of the claim, which is determined only by parties. The scale starts from claims up to USD50, 000.00 and the administrative fee for such claims under the 2003 scale was USD2, 500.00. There is a new scale of fees. I do not have it here. But definitely the ICC deals with both small and big claims.

Question 4

As the only Nigerian in the ICC Court of Arbitration, to what extent would you say that Nigerian parties who are domiciled in Nigeria have been making use of the court?

First and foremost, I need to correct the impression that I am the only Nigerian in the ICC international court of arbitration. No, that is not correct. I am currently in the court with Professor Gabriel Olawoyin. He was even in the court before me. Nigeria always appoints two members to the court. We meet very often in Paris during court sessions. Other eminent Nigerians have been members of the ICC court before me. Judge Bola Ajibola was a member of the court for very many years. His colleagues still ask after him. I told him this sometime when I met him at the Regional Centre for Arbitration in Lagos. The present Minister of State for Petroleum, Mr. Odein Ajumogobia SAN was also a member of the court. I was appointed at the expiration of Odein’s tenure, to join Professor Olawoyin in the court. I think the issue with my appointment is that I am probably the first Nigerian female member of the ICC court of arbitration. Beyond this, other Nigerians have gone before me.

Question 5

To what extent would you say the culture of arbitration has taken roots in Nigeria vis-à-vis other methods of dispute resolution? How can the practice be enhanced?

Really, arbitration has been with us from time immemorial. It has been a mean of settling disputes even in the village. Our law reports are replete with court decisions recognizing such arbitration awards, by the village head for instance, provided due process was followed in arriving at the decision. Commercial arbitration as a dispute resolution mechanism has gained grounds squarely. It is the preferred mechanism for dispute settlement because it has the finality of a court judgment and like a court judgment, if the judgment is not performed, you go to the court to enforce it. Unlike mediation, the judgment of an arbitrator is binding on the parties. The parties also choose their own judges unlike litigation where parties have no control over who decides their cases. It is also faster than litigation.

Sincerely, the practice is enhancing itself. The parties are more aware of the process today and more and more people are choosing arbitration in the resolution of their disputes, our judges understand the issues involved, there are also many more qualified arbitration practitioners in the country today. So we are doing good.

Question 6

Nigeria has a new Arbitration Law now, under the laws of the Federation of Nigeria. What level of input did Nigeria’s arbitrators put into the making or review of that law?

Yes, the Nigerian Arbitration Act has undergone some review with a view to a new Arbitration Act being passed by the National Assembly. That has not been done yet, it is hoped that this will be done soon.

In terms of the input of Nigerian arbitrators to the new Arbitration law that we are expecting, the Federal Ministry of Justice constituted a committee to review the law. Although I wasn’t a member of that committee, very qualified arbitration practitioners were selected to do the job. The committee was headed by Hon. Justice Olakunle orojo. He is a highly respect and seasoned arbitrator, so I have no doubt that a thorough job was done.

Question 7

Most arbitral awards still get challenged in Nigeria. Some see this as an anathema to arbitration practice in Nigeria. As a member of the ICC Task Force on the world wide implementation of the New York Convention and also the IBA/UNCITRAL Task Force also on the implementation of the New York Convention, how can this negative trend be reversed?

You would be surprised that I personally do not see these challenges of arbitral awards as a negative trend. The truth of the matter is that to emerge as one of the attractive destinations for international commercial arbitration, the disposition of the Nigerian courts towards the recognition and enforcement of foreign and domestic arbitral awards must be ascertained by the parties, the users of arbitration service. So when our courts constantly reject applications to set aside awards or to refuse to recognize and enforce awards then parties can choose to have their arbitration in Nigeria. Yes we may say it is expensive for the parties to begin another contest in court for enforcement of the award. In my opinion, it is a process that we must go through. If the loser pays voluntarily, then there will be no need for enforcement proceedings. You see the cities you mentioned earlier, Paris, London, New York, etc, their courts have been tried and tested, the jurisprudence has been developed and the parties can relatively presume the outcome of any enforcement proceedings. It is a stage that I believe we need to go through to be attractive to international parties. This is what the work of the various task forces are all about. We want to know how effective the New York Convention has been regarding the enforcement of foreign arbitral awards, fifty years on.

Question 8

You are currently a member of the Council of the Legal Practice Division (LPD) of the International Bar Association (IBA). Also you were a vice chair of the Arbitration Committee of the IBA and the first African to be appointed as an executed member of the arbitration committee of the IBA. What are the functions of these two organs of the IBA which is the global voice of the legal profession?

As for being the first African to be appointed as an executive member of the arbitration committee of the IBA that was what I was told when I was appointed in 2006. The feeling then was that an African was need at the helm of affairs of the arbitration committee. Having been quite visible as an ordinary member of the committee, I was appointed to an executive position in 2006. But it must be understood that the Arbitration Committee is only one of the committees that make up the Legal Practice Division of the IBA. So here we are talking about the executive of the arbitration committee. There are other committees in the LPD such as Aviation, Maritime, Construction, Capital Market, etc. while the executive members of the arbitration committee oversees the activities of the Arbitration Committee, the Legal Practice Division Council oversees the activities of all committees under it and formulates the policies of the LPD. I was elected into the LPD Council in 2006 in Chicago, during the annual conference of the IBA my tenure is for four years, I have done two, I have two more years to go. My tenure will end in 2010.

Question 9

You recently got listed among the 467 arbitration practitioners from 63 jurisdictions of the world who are considered as the world’s leading experts in the field of International Commercial Arbitration in 2009. This list we understand is the outcome of a worldwide research conducted by the Global Arbitration Review which is an international journal of public and private arbitration. What is the significance of this recognition for you as the only Nigerian so far on that list?

Well, I am glad you use the word, as the only Nigerian so far on that list. This means that many more Nigerians can make the list. From all we have been talking about since the beginning of this interview, you would see that I have been very active internationally of late. For instance, I have been speaking on arbitration at every IBA annual conference since 2005 to date. As I said earlier I was one of the speakers in New York last year during the celebration of the 50th Anniversary of the New York Convention organized by the United Nations and the IBA. I was one of the speakers at the 10th World Arbitration Day in Madrid in 2007; I spoke on Arbitration, Corruption and Money Laundering, a very controversial topic. I figured that the international arbitration community wanted to know my views on this crucial topic. I understand latter from the participants that my paper and comments were very well received. I told the international arbitration community what efforts the Nigerian government was making to fight corruption and money laundering. I spoke about the EFCC and the ICPC. I was a speaker in Prague, Singapore and also Buenos Aires. I also attend the meetings of the ICC commission on arbitration in Paris, the court sessions of the ICC court also in Paris. Yes much as you are putting Nigeria on the map internationally with your efforts, you are also spending your own money and time doing all of these. You sponsor yourself; a lot of work is going on privately. A lot of research, a lot of reading to be done. Most times it is very stressful and demanding, so it is not exactly a tea party out there. The significance of this recognition to me first is that Nigeria features in the list of countries listed in 2009. It is an annual production I believe this is the 9th Edition. Many practitioners all over the world including myself made their debut on the list this year. According to the publishers, you are first nominated, then the views of the practitioners around the world on the nomination and experts are canvassed, before a selection is made, some people are finally selected while others are dropped. I do not know those who nominated me. I did not even know that such process was going on. I only received a letter in October last year that I have been selected. They requested for my biography for publication. The publication is currently in circulation world wide. I thank God for this recognition. I also thank my family for bearing with me. It has been a lot of hard work to get to this stage. International arbitration is a very expensive business. I really thank God. It means all the works internationally have not gone unnoticed.

Question 10

What is your take on the different arbitration bodies and the Chartered Institutes that have emerged in Nigeria? They all lay claim to being branches of the Chartered Institute of Arbitrators in the UK.

First and foremost, the issue concerning the two Chartered Institutes of Arbitrators, is a very controversial and sensitive issue, I do not want to raise more dust on this. Secondly, they both do not lay claim to being branches of the UK institute. There is only one Chartered Institute of Arbitrators (UK) Nigerian branch. The other Chartered Institute, I do not think have ever laid any claim to being a branch of the UK institute. Beyond this, I would not say that this dispute between these two bodies is damaging to us as practitioners and as a country. The international community is aware of this dispute. They ask me what is happening in Nigeria when I go abroad. The dispute is unfortunate and embarrassing. As dispute resolvers, we should be able to sort ourselves out.

As far as I am concerned, what we need now is not this dispute. What we really need now, is to come together and form an arbitration body to be called the Nigerian Arbitration Association. An association that all of us can be members of regardless of which Chartered Institute we belong to. Only then we will be able to realize the futility of this dispute. Most countries have such associations. You have the American Arbitration Association (AAA) and the Swiss Arbitration Association to mention just tow. I am a member of the Swiss Arbitration Association. I pay 250 Swiss Francs annually as membership fee. It is a very highly regarded Arbitration Association and most international arbitrators around the world are members. They hold an international conference in January or February of every year. We all gather there. They are earning revenue. The American Arbitration Association has an international division; it is the International Centre for Dispute Resolution (ICDR). It is based in Dublin. I am listed on the panel of international arbitrators of the ICDR. These are efforts that we can emulate instead of fighting. We can run such association that involves all arbitrators in Nigeria in such a way that other arbitrators who are non-Nigerians and indeed non-Africans can join and this will be positive for us as arbitrators and for the country.

Question 11

You are seriously involved in litigation. While litigation is adversarial, an arbitration is basically an out of court proceeding and a much quicker way to resolve disputes. But some lawyers have expressed reservation that arbitration impacts negatively on advocacy skills. Where do you stand on this having your feet in both worlds?

Yes I am seriously involved in both litigation and arbitration. I am a trained Barrister. I cut my teeth at the Chambers of Mr. Harry Afolabi Lardner SAN. I joined the firm immediately after the call to bar in 1989. I remained there until Dorothy Ufot & Co was established in 1994. I love litigation with a very deep passion. All arbitrators have a primary profession. Arbitration is really a secondary profession. That is why you have lawyers, architects, engineers, accountants and quantity surveyors who are also arbitrators. I have been properly trained in both fields. While Mr. Lardner trained me in litigation, Mr. Tony Canham, a former President of the Chartered Institute of Arbitrators, UK, who is an Engineer, trained me in Arbitration. He was my pupil master. He put me through some very hard training in Arbitration as did Mr. Lardner in litigation. I do a lot of construction arbitration by virtue of the works I did with Tony. All the works were in construction arbitration. There is a lot of construction work in oil and gas arbitration. Although it is very hectic having my feet in both worlds, I am at home with it.

Question 12

What would you say is the future of arbitration in Nigeria?

From all that we have been talking about in the past hours, there is no doubt that the future of arbitration in Nigeria is very bright. It is promising. There is hope, particularly with the Government directive that all Government contracts should contain an arbitration clause of the Lagos Regional Centre. Although a dispute is not the first thing that contracting parties have in mind when entering into a contract, in most cases, disputes are inevitable as the contract progresses, there are capable arbitrators in the country to handle these cases, but we must emphasize experience, education and training to participate effectively.

 

 

    Law Personality Interview with Mrs. Dorothy Udeme Ufot.
   
 
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