‘Lawyers often influence clients’ views about arbitration’

Arbitration as an alternative dispute resolution mechanism
is gradually gaining currency in Nigeria, especially among younger
people. Nathan Searle, a Partner at Hogan Lovell’s firm, United
Kingdom (UK) in this interview with Joseph Onyekwere explains why
this is so and other topical issues.

You are the consultant to the Association of Young
Arbitrators in Nigeria. Tell us more about the group and some of
its success stories?
The Association of Young Arbitrators (AYA) in Nigeria is exciting
because it is an organisation formed by young practitioners for
young practitioners. AYA has brought together a world-class board
of advisors to assist them to develop the organisation. AYA has
exciting plans to develop a mentoring programme as well as
conference for members to learn from each other and exchange
ideas.

In your experience as an arbitrator, what are some of
the factors that could easily frustrate PPP agreement in the area
of infrastructure building and how can the Nigerian Government
avoid such factors in the event that we have willing
investors?
In addition to regulatory certainty, PPP projects need to be
structured so that they are “bankable” in order to attract private
sector finance. This includes having an identified revenue stream,
a means for appropriately mitigating sovereign/political risk (such
as by way of Government guarantees, political risk insurance or
participation by the World Bank or other Development Finance
Institutions) and a stable and effective foreign exchange
regime.

The United Kingdom is reputed as one of the most
arbitration-friendly countries around the world and this has, no
doubt, had direct positive impact on the country’s economy. What
can Nigeria learn from the UK in this area?
There are a number of factors that make London an arbitration
friendly jurisdiction. They include, a modern arbitration law,
courts which are efficient, well resourced and supportive of
arbitration, top-class lawyers and experts, well-run arbitral
institutions with an established track record. London also has good
transport links and facilities such as hotels and hearing venues.
Nigeria shares many of these benefits such as its top-class
lawyers, transport links and hearing facilities such as the Lagos
Court of Arbitration. In England, one area, which has been
particularly successful, is the limits placed on appeals of
arbitral awards and all arbitration appeals being heard by the
specialist commercial court. This leads to a lower volume of
arbitration appeals and those appeals, which do go to the English
courts, are being determined expeditiously. This may be one area
that Nigeria could consider reform as appeals of arbitration awards
often suffer from significant delays in the Nigerian courts due to
the high caseload and stretched resources of the courts.

In spite of its many obvious benefits, the use of
arbitration and other ADR mechanisms in resolving disputes has not
gained much popularity among Nigerian litigants as many still want
to go to court to settle their disputes. How can we stimulate
interest in arbitration in our commercial environment?
Lawyers often influence clients’ views of arbitration and how to
resolve their disputes. Accordingly, a major way to stimulate
interest in arbitration is to educate and train lawyers and create
a forum for lawyers to discuss and engage on how to drive forward
arbitration in Nigeria. There are a number of organisations in
Nigeria seeking to do this including the Association of Young
Arbitrators in Nigeria. Focussing on younger practitioners and
showing the benefits of arbitration for resolving commercial
disputes for small to medium sized enterprises (particularly as the
procedures are flexible and can be adopted to suit the parties and
the nature of the dispute) could really drive growth in the use of
arbitration.

Have you had an assignment in which you had to take a
different approach and was any party affected?
You need to think about that when you’re structuring. Sometimes
what you want to have is an umbrella disputer where all the parties
can go to a single forum to resolve their disputes. In other cases
you may feel that actually, that is not going to be practical
because you have too many parties and too many voices. They may
need to think about making the contracts back to back and whether
if the contractor is liable to the employer on this particular
course so if it is the work of the contractor, how indebted he is
to his work. You may just decide that actually in this case we want
it separate because it is just a small part of the contract. In
other cases, in case you are doing a finance party, the principle
of the main contractor, you may want in certain circumstances to do
that. I remember, when I dealt with where the developing financial
institution in the state entity fell out and it was issue for this
particular concession where money had to be paid and there was a
question about two parties asking the corporation to pay into
different places and in that case, they were under separate
arbitration agreements and It created a tricky situation. It would
have been preferable and a lot easier for everyone if there had
been an umbrella arrangement.

It has been said that the best way for the Federal
Government of Nigeria to rebuild the insurgency-ravaged Northeast
is through Private-Public Partnership. From your perspective as an
arbitrator, what steps must the Nigerian Government take to attract
the right investors?
Infrastructure projects are long-term projects, so a key criteria
for investors is regulatory certainty. Accordingly, it is important
that the Government provide certainty about the regulatory
environment in which the infrastructure projects will be built and
operate.

How do you usually deal with difficulties that arise
when starting projects?
Speaking from personal experience, I acted for a client, where
after a conflict, they had been granted a concession. They got
caught in a crossfire with a third party who had previously held
the same concession. The arbitration is flexible when you need to
think creatively so I might seek relief as to how the project that
I am building might be affected.

guardian.

Arbitration as an alternative dispute resolution mechanism
is gradually gaining currency in Nigeria, especially among younger
people. Nathan Searle, a Partner at Hogan Lovell’s firm, United
Kingdom (UK) in this interview with Joseph Onyekwere explains why
this is so and other topical issues.

You are the consultant to the Association of Young
Arbitrators in Nigeria. Tell us more about the group and some of
its success stories?
The Association of Young Arbitrators (AYA) in Nigeria is exciting
because it is an organisation formed by young practitioners for
young practitioners. AYA has brought together a world-class board
of advisors to assist them to develop the organisation. AYA has
exciting plans to develop a mentoring programme as well as
conference for members to learn from each other and exchange
ideas.

In your experience as an arbitrator, what are some of
the factors that could easily frustrate PPP agreement in the area
of infrastructure building and how can the Nigerian Government
avoid such factors in the event that we have willing
investors?
In addition to regulatory certainty, PPP projects need to be
structured so that they are “bankable” in order to attract private
sector finance. This includes having an identified revenue stream,
a means for appropriately mitigating sovereign/political risk (such
as by way of Government guarantees, political risk insurance or
participation by the World Bank or other Development Finance
Institutions) and a stable and effective foreign exchange
regime.

The United Kingdom is reputed as one of the most
arbitration-friendly countries around the world and this has, no
doubt, had direct positive impact on the country’s economy. What
can Nigeria learn from the UK in this area?
There are a number of factors that make London an arbitration
friendly jurisdiction. They include, a modern arbitration law,
courts which are efficient, well resourced and supportive of
arbitration, top-class lawyers and experts, well-run arbitral
institutions with an established track record. London also has good
transport links and facilities such as hotels and hearing venues.
Nigeria shares many of these benefits such as its top-class
lawyers, transport links and hearing facilities such as the Lagos
Court of Arbitration. In England, one area, which has been
particularly successful, is the limits placed on appeals of
arbitral awards and all arbitration appeals being heard by the
specialist commercial court. This leads to a lower volume of
arbitration appeals and those appeals, which do go to the English
courts, are being determined expeditiously. This may be one area
that Nigeria could consider reform as appeals of arbitration awards
often suffer from significant delays in the Nigerian courts due to
the high caseload and stretched resources of the courts.

In spite of its many obvious benefits, the use of
arbitration and other ADR mechanisms in resolving disputes has not
gained much popularity among Nigerian litigants as many still want
to go to court to settle their disputes. How can we stimulate
interest in arbitration in our commercial environment?
Lawyers often influence clients’ views of arbitration and how to
resolve their disputes. Accordingly, a major way to stimulate
interest in arbitration is to educate and train lawyers and create
a forum for lawyers to discuss and engage on how to drive forward
arbitration in Nigeria. There are a number of organisations in
Nigeria seeking to do this including the Association of Young
Arbitrators in Nigeria. Focussing on younger practitioners and
showing the benefits of arbitration for resolving commercial
disputes for small to medium sized enterprises (particularly as the
procedures are flexible and can be adopted to suit the parties and
the nature of the dispute) could really drive growth in the use of
arbitration.

Have you had an assignment in which you had to take a
different approach and was any party affected?
You need to think about that when you’re structuring. Sometimes
what you want to have is an umbrella disputer where all the parties
can go to a single forum to resolve their disputes. In other cases
you may feel that actually, that is not going to be practical
because you have too many parties and too many voices. They may
need to think about making the contracts back to back and whether
if the contractor is liable to the employer on this particular
course so if it is the work of the contractor, how indebted he is
to his work. You may just decide that actually in this case we want
it separate because it is just a small part of the contract. In
other cases, in case you are doing a finance party, the principle
of the main contractor, you may want in certain circumstances to do
that. I remember, when I dealt with where the developing financial
institution in the state entity fell out and it was issue for this
particular concession where money had to be paid and there was a
question about two parties asking the corporation to pay into
different places and in that case, they were under separate
arbitration agreements and It created a tricky situation. It would
have been preferable and a lot easier for everyone if there had
been an umbrella arrangement.

It has been said that the best way for the Federal
Government of Nigeria to rebuild the insurgency-ravaged Northeast
is through Private-Public Partnership. From your perspective as an
arbitrator, what steps must the Nigerian Government take to attract
the right investors?
Infrastructure projects are long-term projects, so a key criteria
for investors is regulatory certainty. Accordingly, it is important
that the Government provide certainty about the regulatory
environment in which the infrastructure projects will be built and
operate.

How do you usually deal with difficulties that arise
when starting projects?
Speaking from personal experience, I acted for a client, where
after a conflict, they had been granted a concession. They got
caught in a crossfire with a third party who had previously held
the same concession. The arbitration is flexible when you need to
think creatively so I might seek relief as to how the project that
I am building might be affected.

guardian.