Episode 2: ‘Merits of the ADR Process’

 

Abstract 

This is the highlights of episode 2 of Expert Views on ADR (EVA) Podcast which revealed some of the factors that contributed to the recent use of ADR or the rise of ADR in various jurisdictions- which was as a result of delay and cost of litigation. Thus these factors provided an avenue for litigants to move towards Alternative Dispute Resolution (ADR).

Against this backdrop, Mr Steve Adikaibe, a practising lawyer in Nigeria, pointed out the advantages or merits of the ADR process with a clear intention of educating potential users.

 

Introduction 

Advantages of the ADR Process:

Some of the Advantages discussed are -the flexibility of the procedure, expedition, cost-effectiveness, confidentiality, party autonomy and simple procedure of the ADR process.

 

Comments/feedback from this second episode:

Very enlightening podcast thanks Chinwe. I am curious about the cost implications and who pays the mediators, and does it influence their decisions? –Akinyo Ola

I cannot agree less. In line with the above, it appears that the weaknesses of litigation gave birth to the modern ADR. In real life, litigation does not end a conflict even after judgment. It could restrain and compel obedience but cannot install peace and friendship back between disputants. On the contrary, ADR does not just end a conflict but restores love and peace between disputants.- Kenneth Joshua

This is a great piece of work Chinwe, your comparative analysis with the African Arbitration system is very vital.- Ikechukwu Onuoma

Very clear message. Your work on ADR is very expository.- Justina Dillion

I think this is an excellent piece of work. I commend you, Chinwe. I have noticed how expensive the ADR process has become over the last twenty years. I have also observed that the ADR process is becoming too legalistic and the strict application of the rule of evidence makes ADR session looks like courtroom proceedings. In all, ADR is the way to go. – Kingsley Nwabueze Onunwa

Thank you for sharing such an insightful podcast.- David Nzeribe

The importance of a platform like this cannot be understated. Thank you, Chinwe for your initiative on enlightening your audience on this contemporary and relevant dispute resolution solution. It is necessary to understand that a broad range of options now exist in respect to resolving most disputes, especially in the forward-thinking world we live in. This episode is particularly vital to dispel any initial misgivings people new to the process of ADR may have when coming to the table or considering other options to litigation. A great listen for anyone with doubts on the important value of ADR as a process. Unequivocally I say: Great job Chinwe!-Chika Madu

 

Conclusion

This episode has thrown more light on the advantages of ADR; thus, it will encourage or nudge potential users in choosing the best dispute resolution process.

To hear the full version of this episode, click here.

Podcast: Expert Views on ADR (EVA).

 

Episode 1: Is Alternative Dispute Resolution (ADR) an Offspring of the traditional African method of settling a dispute?

 

ABSTRACT

 The first-ever episode segment of Expert Views on ADR (EVA) podcast kicked off yesterday! Thus I had the privilege to discuss with Kenneth Joshua, a renowned legal practitioner in Lagos-Nigeria on the overview of Alternative Dispute Resolution (ADR), the differences and similarities between the present ADR and the Traditional Africa method of settling dispute (TAMSD). We went on to discuss the development of ADR in Africa and how the Multi-door courthouse can be recognized as not only an option but also possibly the first means of settling a dispute at a cheaper rate and efficient manner.

 

Introduction:

 

The Aim of the Podcast:

By and large, Expert Views on Alternative Dispute Resolution (EVA) podcast is centred on the blogger’s thesis research objective, which is on the awareness of the Lagos Multi-Door Courthouse (LMDC) / Alternative Dispute Research (ADR) and its impact on other states, In particular, Enugu state Multi-Door Courthouse (ESMDC). ADR / MDC are at the forefront of drastic sensitization and development, particularly Africa. Thus, this blogger wants to be a part of this sensitization, particularly enlightening disputants/litigants who are yet to use this process. Hence I will invite key speakers (Experts in ADR / MDC) from the African continent and other continents every weekend to state or share their views on the benefits of ADR / MDC to get more and more users to embrace and pursue a career in ADR.
It is pertinent to point out that I am the host, super excited to achieve this milestone!

 

Significance of the Podcast:

This podcast thus far has been able to simplify ADR for potential users to be fully aware that Litigation is not the only option, that there are other alternatives. Moreso, for the users and non-users of ADR, to recognise the inherent pros and cons associated with this process and why it is important to opt for it for certain types of disputes.

For all intents and purposes, Kenneth and I are of the view that the Traditional method of settling a dispute in Africa (TAMSD) and the present ADR seeks to achieve the same purposes. However, they may vary depending on the circumstances of each dispute presented before it. However, both processes of dispute resolutions target to restore relative peace, harmony, fairness and eliminate rancour of any form between the disputing parties in a manner that reassures and resonate reasonable coexistence thereafter. For me, the processes are largely typical but differ in their procedures. Hence, we state that the procedures share so much in common but differs in its composition, approaches, methodology and inspirations. The African setting gives credence to persons that have distinguished themselves in the society to sit amongst the panel of mediators with or without expert or professional qualifications or experience on the matter. All that matters is their good standing in society. 

However, the present ADR pays more attention to professionals that have acquired enormous expertise in dispute resolutions. Furthermore, the present ADR platform has gone ahead to entrench the ADR formulas to an aspect of our laws that make it extremely difficult to abscond from the arrangements finalized during the dispute resolutions; thereby making it a more formidable and dependable channel of resolving disputes. This has further advanced the assurances of users knowing fully well that it is legally effective and can be enforced within the ambits of the law or legal system- which is encouraged globally. We must give credence to the traditional African dispute resolution(TAMS) pattern, as the present ADR is an advancement on the good jobs entrenched by the traditional system of old.

 

Comments/feedback from this  first episode:

 Well done, Chinwe. You are a true ADR advocate. Like I earlier said, I totally agree with you. The modern-day ADR is a replica of the traditional African mode of conflict resolution. During the pre-colonial era, which dates, back before 1861, ADR was the only means of settling a dispute in Nigeria. The modern-day court came later with the arrival of colonialism. It, therefore, suffices to hold the view that the modern-day ADR is the offspring of the traditional African model of ADR. Thank you. –Ken

Good job, Chinwe. Yes!-the modern-day ADR seems to be the new modern; advanced method of settling disputes, the obvious difference is “ADR” is a modern method while the traditional method is an old method. –Abdul

I learnt that anyone could practice ADR, ADR is basically what has been existing just that it did not have the fancy name for it yet but a question that has been on my mind since is how binding is ADR and I also learnt what court-connected ADR is. Furthermore, how to settle a dispute and get a ruling on it so that makes it binding and so much binding because the parties gave their consent. This podcast gave me the answers to all these questions. Well done. –Esy

  Very enlightening podcast thanks Chinwe. I am curious about the cost implications and who pays the mediators, and does it influence their decisions? Akinola Ola

The institution pays the mediators; thus, it does not affect their decisions. It is essential to point out that the institution gets funded by the government or from walk-in or private matters. Chinwe Stella Umegbolu

The importance of a platform like this cannot be understated. Thank you, Chinwe for your initiative on enlightening your audience on this contemporary and relevant dispute resolution solution. It is necessary to understand that a broad range of options now exist with respect to resolving most disputes, especially in the forward-thinking world we live in. This episode is particularly vital to dispel any initial misgivings people new to the process of ADR may have when coming to the table or considering other options to litigation. A great listen for anyone with doubts on the important value of ADR as a process. Unequivocally I say: Great job Chinwe! Chika Madu

This is a great piece of work Chinwe, your comparative analysis with the African Arbitration system is very vital. IK Onuoma

I cannot agree less. In line with the above, it appears that the weaknesses of litigation gave birth to the modern ADR. In real life, litigation does not end a conflict even after judgment. It could restrain and compel obedience but cannot install peace and friendship back between disputants. On the contrary, ADR does not just end a conflict but restores love and peace between disputants. Ken 

Thank you for sharing such an insightful podcast. David Nzeribe

Very clear message. Your work on ADR is very expository. Well done, sis… way to go! Justina Dillion

I think this is an excellent piece of work. I commend you, Chinwe. I have noticed how expensive the ADR process has become over the last twenty years. I have also observed that the ADR process is becoming too legalistic and the strict application of the rule of evidence makes ADR session looks like courtroom proceedings. In all, ADR is the way to go. Good work, Chinwe. Kingsley Nwabueze Onunwa

 

Brilliant sis. Persistence, perseverance, diligence and excellence. Well done. Kingsley  Nwokolo

 

CONCLUSION

Flowing from the above, this first episode of the podcast has made users and non-users to be aware of the advantages of ADR and how it relates to the TAMSD. This line of thinking is predicated, from the comments/ feedback mentioned above connoting that the EVA podcast, is on its way in fulfilling one of its aims.

It is essential to point out that EVA is aired on Anchor FM for an average of 30mins recording time and its distributed by Anchor FM on different social media platforms like Spotify, iTunes, Breaker, Google Podcasts, Pocket Casts and Radio Public.

For the full version of this episode click here

Reference:
Chinwe Stella Egbunike- Umegbolu, Dispensation of Justice: The  Lagos Multi-Door Courthouse (LMDC) as a Case Study (Ongoing-research at the University of Brighton 2018-2021) 89.

Stay tuned next weekend for more episodes on Expert views on ADR (EVA)!!!

New at the LMDC- Online Settlement Month (O.S.M).

 

Introduction:

The Lagos Multi-Door Courthouse will be holding it’s first (1st) Online Settlement Month (O.S.M) in Africa from the 11th-16th December 2020. The O.S.M., which was recently approved by the Chief of Judge of Lagos State, Hon. Justice K.O Alogba, is a part of the on-going initiative- the Lagos Settlement Week (L.S.W.). Set up by the LMDC in conjunction with the Lagos State Government and the Lagos State Judiciary in a bid to minimise the frustration of disputants and ease delays in the courts.

The Introduction of the O.S.M in Lagos state shows that the Lagos Multi-Door Courthouse has continued to fulfil its overriding objectives stipulated in section 2 of the LMDC Law 2015. One of which is to enhance access to justice by providing alternative mechanisms to supplement litigation in the resolution of disputes.

Purpose of the O.S.M:

To reiterate, the purpose of the L.S.W. is to assist in decongesting the court’s dockets in the state as well as enhance the justice system through the definitive reduction of the caseload of the courts and cost within a specific time. The purpose as mentioned above aligns or is in line with the purpose of the O.S.M. However, the distinguishing factor between the two is that parties to a dispute can resolve their conflicts from the abode of their homes or offices amongst others. Additionally, the LSW/ Dispute settlement is a week’s events whereas the O.S.M is within one month. 

Scopes of matters settled under the O.S.M:

The nature of matters covered at the O.S.M includes Tenancy matters, Banking, Real Estate, Maritime, Aviation, amongst others.

Scopes of matters not covered: It is essential to point out that Capital offences and divorce proceedings are not covered at the LMDC. However, minor offences can be settled through the restorative door.

Benefits of Online Settlement Month (O.S.M):

a) O.S.M will reduce both the magistrates and judges dockets, thereby allowing them to focus on more complex cases.

b) It will provide parties with autonomy where they can stipulate what they want and how they want it in their contractual agreement. Thus if both parties decide to settle that same day or another day, then Terms of settlement (T.O.S.) will also be signed online. Hence it saves time and cost.

c) It is inherently non-coercive and private- If both parties show up then it demonstrates that they are on the same page, they want to resolve past issues and address future needs thus they will be able to secure a win-win outcome.

 

Challenges facing the O.S.M:

The following are some of the challenges I believe that the O.S.M may face:

a) Some parties may not be aware of this initiative because it is new, so the turn up might be low or not much.

b) Some parties who are not computer literates may not know-how to commence cases online, or might need help, to get started on the computer thereby delaying the process or not showing up at all.

c) It may cost more for parties who will still need the services of their lawyers and

d) Some cases might not be resolved within the duration stipulated herein- due to the complexity of some cases; thus, it will be returned to the courts.

 

Conclusion:

I believe that Online Settlement Month encapsulates all the ideals of a faster case flow management system; hence this new initiative would enhance the effectiveness of the Alternative Dispute Resolution through the LMDC practice. Hopefully, the O.S.M will live up to these expectations. Fingers crossed.

 

P.S: Read the guidelines governing Online Dispute Resolution at the Lagos Multi-Door Courthouse (LMDC), which I stated in my previous post.

 

Reference:

LMDC Linkedin page

LMDC Law 2015

Umegbolu, Chinwe, Dispensation of Justice: Lagos Multi-Door Courthouse (LMDC) as a case study (Ongoing PhD Research at the University of Brighton).

 

African Arbitration Association (Awards): I’ve been shortlisted!

I’m super excited to have been shortlisted for the 2020 African Arbitration Awards (AAA). To everyone who must have voted for me, I say thank you from the bottom of my heart because without you I would not have been shortlisted. Una Vez más, Muchos Gracias! Dallu rinne!! Merci Beaucoup!!! Danku!! 

A friend of mine told me that to be shortlisted is an outstanding achievement and I couldn’t agree more.

 

What you need to know about the African Arbitration Association (AfAA):

The AfAA was established in 1998, and its headquarters is located at Kigali, Rwanda. 

Its overriding objectives are as follows:

(a)  to act as the platform for African international arbitration practitioners and African arbitration institutions within the African continent to enhance the capacity of African parties, institutions and practitioners;

(b)   to act as a reference point for information concerning activities in international arbitration and alternative dispute resolution within the African continent;

(c)   to increase coordination amongst its members in respect of Africa-related international arbitration and alternative dispute resolution activities;

(d)   to provide greater access to information about international arbitration and alternative dispute resolution in Africa;

(e)  to promote African international arbitration practitioners and African arbitration institutions within and outside the African continent;

(f)    to facilitate and encourage the appointment of African international arbitration practitioners and the use of African arbitration institutions;

(g)   to advance the use of international arbitration and alternative dispute resolution as effective methods of dispute resolution of Africa-related transactions and disputes;

(h)   to support the provision of technical assistance, awareness-raising and capacity-building activities to African governments to assist them in their task of strengthening the legislative and judicial frameworks in the field of arbitration and other means of dispute resolution; and

(i)   to enhance awareness of existing capacity-building initiatives, to increase coordination in delivering technical assistance and capacity-building activities, and to improve cooperation among international and regional organisations, arbitral institutions, academic institutions and professional associations throughout the African continent.

In sum, the AfAA is a non-profit private organisation, and its members are successful African arbitrators, ADR practitioners, African arbitration institutions with the clear vision of enlightening and promoting dispute resolution in the African Continent. In the past, most of the headline on ADR was mainly centred on western ADR. Embracing the words of Adichie on the dangers of a single story and the need for a balanced story. Hence, I believe the AfAA has changed the narrative by providing insights into African Arbitration and Alternative Dispute Resolution cutting across Africa. Indeed it’s now a ‘balanced story.’

 

Reference:

AfAA Website.

Chimamanda Ngozi Adichie, the danger of a single story (Ted talks: Youtube 2009).

The Lagos Settlement Week (LSW)

 

Source: Lagos multi-door courthouse (LMDC)

 

Introduction

The Lagos Settlement Week (L.S.W.) as the name implies is a week set aside by the Chief Judge of Lagos State for specific Courts to clear the backlog of cases through referrals to the LMDC for possible resolution through the A.D.R. processes. It is essential to point out that the settlement week is a joint initiative of the Lagos Multi-Door Courthouse, the Lagos State Judiciary, the Lagos State Government and the Nigerian Bar Association (N.B.A.).

Hence most of the cases that are treated during the settlement week are court-referred and walk-in matters. These are cases that have been attempted in the informal setting A.D.R. and failed, thus the real motive behind the LSW is to find a way of decongesting the high courts. In other words, the court wants to give a second try to those cases and also to uphold the High Court of Lagos (H.C.L.) State Rules; Order 3 Rule 11:

for all originating processes filed in the Registry shall be screened to determine the suitability for Alternative dispute resolution (A.D.R.) mechanisms and may be referred to the Lagos Multi-Door Court House or any appropriate A.D.R. institution.”

For the following reasons, H.C. L  Rules, in collaboration with the LMDC, has demonstrated the viability of Alternative Dispute Resolution for Justice reform and continues to serve as a model for other states of the federation.

It is essential to point out that the first settlement week programme for 2019  was held at the beginning of the year. And the subsequent one was held in December 2019. The next settlement week is from the 21st-25th September 2020. It is essential to point out that before the  Lagos Settlement Week (L.S.W.)  takes off. The case managers will have to go to the court to screen matters, that are A.D.R. amenable.

 

Online Dispute Resolution (O.D.R.):

The Lagos Multi-Door Courthouse has continued to fulfil its overriding objectives stipulated in section 2 of the new rule 2015- by providing the 1st Online Settlement  Month (O.S.M.) in Africa. The Chief of Judge of Lagos State, Hon. Justice K.O Alogba recently approved the discourse as mentioned above. The first-ever O.D.R. week will be held from the 11-16th December 2020.

 

The Purpose of the Lagos Settlement Week: 

One of the overriding objectives of the LMDC is to promote or undertake activities including but not limited to the settlement week which will further aid in decongesting the courts and in turn assist in achieving the purpose for which the LMDC was established.

In furtherance, Settlement Week was created to encourage the early settlement of cases pending in the Lagos High Court; in so doing paves the way for cost-effective justice and speedier dispute resolutions for the disputants.

 

Scopes of matters that can be referred to the L.S.W.: 

A.D.R. can be utilised in resolving disputes ranging from; Tenancy matters, property disputes, debt recoveries, libel and slander, administration of an estate, employment and trade disputes; construction disputes; accident and tort; medical negligence, contracts enforcement, family disputes, succession disputes, small claims and banking and insurance-related disputes

 

Conclusion:

Evidently, the L.S.W. and O.S.W. is an A.D.R. awareness program to restore public confidence in the judiciary and promote A.D.R. processes in Nigeria. It is also a perfect opportunity for the stakeholders-Judges, magistrates, lawyers, mediators and users of the scheme to partake in promoting A.D.R.

 

References:

Umegbolu, Chinwe: Dispensation of Justice: Lagos Multi-Door Courthouse as a Case Study ( Ongoing research at the University of Brighton).

The Lagos Multi-Door Courthouse: Lagos Settlement Week -Frequently Asked Questions (FAQS).

The High court rules of Lagos State 2012

 

 

 

 

 

 

KAZAKHSTAN COURT: THE VALIDITY OF THE ARBITRATION CLAUSE AND ANTI-SUIT INJUNCTION

Source: Caroline University

 

ABSTRACT

This work critically examines the impact of the Supreme Court decision as to the legality of the arbitral agreement after the Kazakhstan Supreme Court had declared the agreement to be invalid. It also explores the implication of the verdict and how the Supreme Court arrived at such a determination.

This work further scrutinises the impact of the anti-suit injunction and the reasons given by the Supreme Court to intervene in a matter relating to court proceedings in a foreign jurisdiction. The work has recourse to secondary data approach- cases, journals, articles, newspapers and websites and the conclusion justifies the stance of the apex court in her decision not to be held captive by the 1996 English Arbitration Act.

 

 

Keywords: Alternative Dispute Resolution, Arbitration, Asia Judiciary, Legal Practice & Procedure

 

 

INTRODUCTION                                                                                                                            

This case review examines the recent decision of the House of Lords in the case of UstKamenogorsk Hydropower, which was declared invalid by Kazakhstan Court irrespective of its validity and enforceability.[1] The preceding judge was of the view that it was time to take issues on a case by case basis rather than relying on the old legal decision, in which the lead judgement was given by Lord Mance JSC with whom the other four law Lords; agreed demonstrating that the House would not flinch from difficult decisions as long as there are substantial legal reasons for doing so.[2] It is however surprising that this power demonstrated by the House here is limited by the Brussels Regulation by the Court of Justice in the West Tankers case, it now means that an English court can no longer enforce contractual rights by injuncting a party within its jurisdiction from continuing proceedings in a foreign court in Brussels.’ [3] This distinction is crucial because when we refer to the courts in future following the decision, in this case, the difference must be borne in mind.[4] This decision is significant for the simple reason that the judges were willing to take a very definite stand against what they thought was the right thing to do on this individual case. They had pointed out that issues of this nature must be treated on a case by case basis.[5] But having removed the hoodoo surrounding the reluctance of the English courts to intervene in injunctive reliefs concerning actions taken in the foreign Court.

THE LEGALITY OF THE ARBITRATION CLAUSE

The issue here was whether the High Court in England was right to entertain or look into a concession agreement entered by the owners against the operators AES. [6]The agreement was governed by Kazakh law but contained an arbitration clause providing for arbitration in London under English law. [7]In proceedings relating to the concession, the Supreme Court in Kazakhstan held that the arbitration clause was contrary to Kazakh public policy and thus invalid.’ [8] Therefore the claimant who had not commenced arbitration proceedings and had no intention or wish to do so commenced proceedings in England for a declaration as to the validity of the arbitration clause and obtained without notice an interlocutory anti-suit injunction in respect of the Kazakh court.’ [9]In challenging the decision of the English Court, the defendant relied on the section. 44 of the Arbitration Act 1996 that in as much as there was no actual or intended arbitration, there was no jurisdiction to grant an injunction under sec.37 of the Senior Courts Act 1981.[10] This case is compelling for the reasons advanced by the Court of the first instance for reaching its conclusions. First, the Court relied on s.32 (3) showing that the Kazakh Supreme Court decision did not bind it, that it would not recognise the decision nor enforce it.[11] Secondly, it proffered the idea that English public policy favoured the enforcement of arbitration clauses and thirdly, that the agreement adequately construed did not offend Kazakh public policy.[12] Fourthly, there was a good case that the claimant had not submitted to the Kazakh economic court for the purposes of s.33 of 1982.[13] This decision was appealed by the defendant, and the Court of Appeal dismissed the appeal.[14]

This case review seeks to explore the rationale of the decision taken by the House and why this may have changed the legal climate as it affects declarative relief and an anti-suit injunction against foreign proceedings, where there had been an undertaking not to bring those actions.[15] About the arbitral agreement, the Kazakh Supreme court held that one of the key provisions in the arbitral agreement in clauses 17.8 and 17.9 which dealt with tariff was outside the arbitral agreement, and was meant to be dealt with by an expert.[16] The Court argued that the disputes which related to tariff were against Kazakh public policy as it puts it beyond its control. [17]The English court equally accepted that this was outside the arbitral agreement but argued that if adequately construed, it was not against the Kazakh public policy.[18]

But the second point on which the Kazakh Court dismissed the arbitration clause was even more controversial.[19] In their view, the Kazakh court thought that the reference in clause 32 to the Rules of the ICC did not refer to ICC and left the arbitrary body unspecified.[20] This is a strange summation by the Court as there is in their opinion only one ICC, and to discard the arbitration agreement on that basis leaves much to be desired.[21] It was therefore not surprising that Burton J concluded that neither the ground espoused by the Kazakh court was sustainable.[22]

The focal point here is that AESUK had been frustrated through consecutive rulings by Kazakh courts and was left with no alternative but to seek relief from the English courts, as attempts to stay proceedings under the Arbitration agreement was rejected by the Kaz”h “Economic Co” t.’’[23] JSC, on its part, refused to give any undertaking that it would cease from asking for further information, nor from taking further proceedings in Kazakhstan.[24] These were, therefore, the reasons for the hearing in the Court of the first instance and the Court of Appeal.[25] JSC was unsuccessful on both appeals, and the matter proceeded to the House of Lords, which is now the subject of this analysis.[26]

The process through which the House reached its decision was based on pragmatism and real review of what was available to the disputant according to precedent.[27] Thus, it will form the basis of this analysis. Before proceeding to how the House reached its decision, it is pertinent to point out that an arbitral tribunal, could rule on their jurisdiction under s. 30, their ruling could be tested under sec.32, 67, and or 72 and the Court could in the meantime be asked to give interim relief under sec’ 44.’[28] This case note does not accept that JSC had adequately put its case before the Court, in that neither ASEUK nor JSC either intended or anticipated an arbitral proceeding.

However, the logic of their argument is such that they had argued about the effect of s.30 which primarily deals with the situation where a tribunal would rule in its substantive jurisdiction whether there is a valid arbitration agreement, whether the tribunal is adequately constituted or whether the matter has been submitted in accordance with the arbitral agreement.[29] It certainly reflects the ration of the case of KompetenzKompetenz, lending credence to the above claim is the case of Dallah,[30] in which it was held that a tribunal might rule whether the question was within its jurisdiction. It, however, does not prevent the Court from reviewing the tribunal decision based on s. 32, 67 or 72 of the 1996 Act.[31]

In the present matter, it would appear that there is a difference between the examples relied upon by JCS and the cited authorities as they contemplate a situation where a tribunal hearing is anticipated, but in the present case, none is anticipated.[32] After extensive examinations of the above-listed sections, together with the case such as ABB Lummus case, concluded that it has no bearing on the present matter.[33] In fact, in paragraph 40 states t”t “these cases have no direct bearing on the present situation.[34] Here, no arbitration proceedings are on foot, and ASEUK does not intend or wish to institute any. S. 30, 32, 44, and 72 of the Act are all in terms of inapplicable. No arbitration tribunal exists to determine its competence under s’ 30.’[35] This summation in the view of this paper was inescapable as it is clear that a tribunal cannot be asked to rule on its jurisdiction where no arbitral proceeding was anticipated. In the final analysis, the House held and in our view rightly so, t” “ In these circumstances, there is, in my opinion, every reason why the Court should be able to intervene directly, by an order enforceable by contempt, under s. 37.[36] To do so cannot be regarded, in DAC’sAC’s words, as intervening in the arbitral process, thereby tending to frustrate the choice the parties have made to use arbitration rather than litigation as the means for resolving their dispu” s.’’[37]

 

THE POWERS OF ENGLISH COURT TO GRANT INJUNCTIVE RELIEF AGAINST FORECOURT’SRT’S DECISION.

The power of the EnglCourt’srt’s to decide about the jurisdiction of a tribunal whose seat is London is one thing, but to make an injunctive order to a party to a dispute from pursuing their claim in a foreign court is the subject of our next inquiry. Before going further, it is vital at the outset to lay a brief foundation. First BurJ’s J’s order needs to be revisited” “ The claim, the subject matter of the [ Kazakhstan proceedings] or any other claim arising out of or in connection with any matter or thing concerning the provisions of the Concession Agreementsave only for excepted matters, arbitration proceedings in the International Chamber of Commerce in London and under its Ru’ es.’[38] The second point is that the ruling above was accepted by both the appellant and respondent as being the final order. [39]This issue was not challenged throughout the appeal, thus demonstrating that specific claims could only be adequately pursued in arbitration, and restraining their pursuit in any other forum. So future claim can only proceed in line with BurJ’s J’s order and injunction, it appeared that the Supreme Court had proceeded on that basis.[40] Hence, the principle brings out a peculiar feature which compares the power to apply for a stay under s. 9 of the arbitration, with the power to injunct on foreign proceedings.[41] Why this is crucial to this case note is the fact that it demonstrates that the English Court has not done anything strange. It could be considered from this perspective to be something within the remit of the courts. What was, however, interesting was the remark made by the House that the previous caution must be re-examined and a more robust approach adopted in this case.[42] Therefore, the House was not impressed with the view expressed by JSC that for the Court to injunct the commencement or anticipated foreign court proceedings.[43] In the sub-heading below, we would now examine how the Supreme Court relied on its characteristics boldness to use the powers conferred on it by s. 37 to injunct against the commencement or continuation of foreign proceedings.

AUTHORITIES ANALYSED

The authorities for the formulation of the decision to rule on the need for the English Court to intervene in the matter of whether the arbitration clause was enforceable had been dealt with above. But having said that there was no dispute as to BurJ’s J’s decision in the course of the appeal from both sides, we are now left with pointing out the reason for the protracted appeals. However, it is crucial to explore the authorities on how the House of Lords examined the various options available to them and why they choose to take the path they took.

First, they examined the ratio of the case of Pena Copper Mines Ltd v Rio Tinto Ltd, Moulton LJ said that words in the arbitration clause were that they would not sue in foreign c’urt’, was certainly contrary to their contractual duties.[44] This was the point reached over a hundred years ago, so the House of Lords proceeded to a more recent case in the 1990s. In it they looked at the decision in the case of   Aggeliki Charis Cia Marittima SA v Pagnan Spa [45]In this case parties had agreed to arbitrate in London and then the Charterers took proceedings in Venice. The Court of Appeal held citing Pena Copper and other authorities, that the courts ought not to feel different about granting an anti-suit injunction if sought promptly.[46] But the ideas of the Court in the 1990s were such that the courts were willing to injunct foreign proceedings brought in breach of not having a right to interfere with the conduct of proceedings in a foreign co”t.’’ This showed that the English courts approach to foreign proceedings was cautious and non- interventionist; therefore, for the Lordships to proceed from this approach to the present is a demonstration of a massive shift in outlook. Hence, Millet LJ words highlighted the new strategy, which this case note considers to be the pointer and essence of this paper.[“7] “He said that the time has come, the question must be the present and in essence showing the shift in intent and purpose of the courts) for the cou” “ to lay aside the ritual incantation that this is a jurisdiction which should only be exercised sparingly and with great caut” n.’’[48] An injunction should be granted to restrain foreign proceedings in breach of an arbitration agreem” “ on a simple and clear ground that the defendant has promised not to bring t” m.’’[49] The reasons for the appeals through to the House of Lords could now be appreciated, that there was an apparent controversy between the position held by ASEUK and JSC. While itJSC’sSC’s position that the injunction was a violation of the lawful right chosen by the parties to settle their dispute and that the EnglCourt’srt’s proceeding was neither needed nor required, as parties have chosen to arbitrate.

Mostly this paper was not able to extensively embark on a round trip through the arbitration Act as anticipated, nor a critical examination of s. 9, 44, of the 1996 Act and s. 37 of the Senior Courts Act 1981.[50] The reason this paper did not go into these collective sections is that arbitration was never initiated nor anticipated.[51]

 

CONCLUSION

Against the backdrop, it would appear that the approach for or by the English courts to abandon its conservative approach to a declarative and injunctive order against foreign proceedings has to be abandoned. This case signals a new approach by English courts to become pro-active in their quest to granting injunctions against the backdrop of acting within their lawful authority. Nothing makes this position more salient than the statement made by His Lords”Where an order is sought to restrain foreign proceedings in breach of an arbitration agreement; whether on an interim or final basis and whether at a time when arbitral proceedings are or are not on foot or proposed. The source of the power to grant such an injunction is to be found not in sec.44 of the 1996 Act but in sec.37 of the 1981 Act.

This, therefore, justifies the stance of the apex court in her decision not to be held captive by the 1996 Act, which further noted that sec. 37 of the 1981 Act gives the Court and all-encompassing power to endorse the decision of Burton J. Hence, the appeal of JSC was accordingly dismissed. This case, therefore, opens in this writers view the flood gate of new cases that would jump on the bandwagon of this landmark case.

 

 

Bibliography

Primary Sources

Cases

  • Ace Capital Ltd v CMS Energy Corporation [2008] EWHC 1843.
  • Arsanovia Ltd v Cruz City 1 Mauritius Holdings [2012] EWHC 3702(Comm).
  • ABB Lummus Global Ltd v Keppel Fels Ltd [1999Lloyd’syd’s Rep 24.
  • Aggeliki Charis Cia Maritime SA v Pagnan SpA (“he “Angelic G”ace”) [199Lloyd’syd’s Rep 87.
  • C v D [2007] EWCA Civ 1282.
  • Cetelem SA v Roust Holdings Ltd   [2005] EWCA Civ 618.
  • Channel Tunnel Group Ltd v Balfour Construction Ltd [1993] AC 334.
  • Donohue v Armco Inc [2001] UKHL 64.
  • Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2010]UKSC 46.
  • Fiona Trust and Holding Corp v Privalov [2007] EWCA Civ 20.
  • Hiscox Underwriting Ltd v Dickson Manchester & Co Ltd [200Lloyd’syd’s Rep 438.
  • Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43.
  • Pena Copper Mines Ltd v Rio Tinto Co Ltd [1911]105 LT 846.
  • Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638.
  • Sokana Industries Inc v Freyre &Co Inc [199Lloyd’syd’s Rep 57.
  • South Carolina Insurance Co v Assurantie Maatschappij “De Zeven Provincien”NV [1987] AC 24.
  • Sonatrach Petroleum Corporation v Ferrel International Ltd[2002]1 ALL ER(COMM)627.
  • Turner v Grovit [2001] UKHL 65.
  • Vale do Rio Doce Navagaceo SA v Shanghai Bao Steel Ocean Shipping Co Ltd [2000]2 All ER (Comm) 7.
  • West Tankers Inc v Allianz SpA [2009]1 AC 1138.

 

 

 

 

Legislation

  • Arbitration Act of 1996
  • Arbitration 1950
  • Brussels Regulation 2001
  • Civil Procedure Rule 1998
  • Geneva Conventions 1949
  • New York Convention on the Recognition & Enforcement Awards 1958
  • Chartered Institute of Arbitrators Rule 2000
  • Senior Courts Act 1981
  • Supreme Court Act 1981
  • UNICTRAL Model Law on International Commercial Arbitration 1985

Secondary Sources

Books

  • Gary B, International Arbitration Cases and Materials (Walters Kluwer Law 2011).
  • Moses M, The Principles and Practice of International Commercial Arbitration (2nd edn, Cambridge University Press, U.S.A 2012).
  • Marshall E, Gill: The Law of Arbitration (4th edn, Sweet& Maxwell 2009).
  • Redfern A, Hunter M, on International Arbitration Student Version (5th edn, Oxford University Press 2009).

 

 

Journals and Articles

  • Herbert S, Aes Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35; [2013]WLR (D)232(ICLR, The Incorporated Council of Law Reporting for England & Wales.).
  • Knill N, Hogan B, Anti-Suit injunctions: the tailored approach (Clyde& Co 2013).
  • http://clydeco.com accessed on 6th April 2014.
  • Lee S, English Court has the power to issue an anti-suit injunction in support of non-existent arbitration< https://singaporeinternationalarbitration.com>accessed on 6th April 2014
  • Ust- Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35 (2013 All ER (D)89(Jun)
  • <https://www.lexisweb.co.uk >accessed on 6th April 2014.
  • Umegbolu Chinwe, Case Note on AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35 (Case Note submitted to Kingston University London 2014)

 

 

Websites

  • Supreme Court Confirms Power to Grant Declaratory and Anti-Suit Injunctive Relief Even Where No Arbitration is Commenced or Proposed (Allen & Overy LLP 2013)
  • <http://allenovery.com> accessed on 6th April 2014.
  • Tench D, Coogan L, Hopkins C, New Judgement: Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35 (UK Supreme Court Blog 2012)
  • (OLSWANG, Singapore International Arbitration Academy 2013).

[1] Ust-Kamenogorsk Hydropower Plant v Ust-Kamenogorsk Hydropower Plant JSC Supreme Court [2013] UKSC 35. 1

 

[2] Ust-Kamenogorsk Hydropower Plant(n1)

[3]West Tankers Inc v Ras Riunione Adriatica di Sicurta Spa [2005]2 All ER(COMM)240.

[4]Turner v Grovit [2001] UKHL 65: [2002]1WLR 107

[5] Philip Clifford, English Supreme Court Confirms Power To Issue an Anti-Suit Injunction, Even if no Arbitration is Contemplated (Ust-Kamenogorsk Hydropower Plant JSC v. AES Ust-Kamenogorsk Hydropower Plant LLP)[2013]UKSC 35.Latham&Watkins LLP 1-2

[6] Ibid 1-2

[7] Smith Herbert, Aes Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35[2013] WLR (D) 232 (The Incorporated Council of Law Reporting for England &Wales) 2-3.

[8] Ibid (n4) 1.

[9] Ust-Kamenogorsk (n4)1-3.

[10] Ibid 1.

[11] Civil Jurisdiction &Judgement Act 1982 Section 32(3).

[12] Dan Tench, Laura Coogan, Sophie Harbord, Luke Pardey, Case Preview: Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP (UKSC blog 2013)1-2< http://www.ukscblog.com>accessed on 6th April 2014.

[13] Civil Jurisdiction (n12).

[14] ibid

[15] Ust-Kamenogorsk (n4)1-3.

[16] Ust -Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24]Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid (n17).

[28] Arbitration Act 1996, Section 32, 67,72.

[29] Ibid.

[30] Dallah Real Estate& Tourism Holding Co v Ministry of Religious Affair of the Government of Pakistan [2010]UKSC 46.

[31]Ibid (n30).

[32]Ibid.

[33] ABB Lummus Global Ltd v Keppel Fels Ltd [1999Lloyd’syd’s Rep 24.

[34] Ibid.

[35]Ibid (n32).

[36] Ibid (n34).

[37] Ibid 12.

[38] Ust-KamenogorskHydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35.

[39] Ibid 7.

[40] Ibid 7.

[41] Arbitration Act 1996, Section 9.

[42] Ibid (n38).

[43] Ibid 8.

[44] [1911] 105 LT 846.

[45] [1995] 1 Lloyd’s Rep 87.

[46] Ibid (n42) 8.

[47] Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013]UKSC 35.7-8

[48] Ibid 7-8.

[49] Ibid 8.

[50] Ibid.

[51]Ibid.

The Lagos Multi-Door Courthouse: Online Dispute Resolution in COVID-19 Era

 

 

 

Source: Business Times

 

Introduction

Technology has become a part of everyday life in today’s world and most especially during this current Pandemic. Due to this unexpected occurrence, face-to-face mediation session at the LMDC in Nigeria was cancelled. However, the LMDC has been quite diligent by upgrading their rules and taking innovative measures to maintain their competitive edge- by embracing an efficient system of online dispute resolution, they have shown that they can adapt to changing circumstances.

Lending credence to the above is a recent case instituted through the High Court of Lagos State (H.C). This case borders on a family dispute involving child custody and welfare, which was resolved through the LMDC-ODR platform within a day. This case is a pointer to the LMDC’s ability to adapt to changes brought by COVID-19. On the other hand, Enugu State Multi-Door Courthouse (ESMDC) has also embarked on the same project.

Snapshot of Online Dispute Resolution (ODR):

Dr Babatunde Ajibade (SAN) emphasised that “the legal profession in Nigeria is not left out, technology is pervading our space in so many ways, we either use tech, or we can be scared of tech.”

Flowing from the above this blogger embraces this statement but believes that ODR is the new normal and has come to stay in Nigeria, particularly in the ADR sector. To buttress the point stated above is the recent virtual conferences that I have attended during this pandemic era, from the CIARB conference to the Guild of Adjudicators in Nigeria (GAIN) conference amongst others. These conferences have one thing in common, which is the use of technology/ Virtual platforms to continue to carry out their businesses.

ODR is a broad term that encompasses forms of Alternative Dispute Resolution (ADR) and court proceedings, which use the Internet as a part of the dispute resolution process. Thus Online alternative dispute resolution (OADR), or ADR online, denotes the use of technology, as a medium which is employed to conduct the proceedings of Alternative Dispute Resolution (ADR).  To resolve commercial disputes which arise- leveraging technology. In furtherance, Neutral private bodies within the prescribed guidelines of the LMDC procedures facilitate the proceedings.

                  

Advantages of using ODR 

Self-representation: This provides an opportunity for parties to represent themselves and save them unnecessary fee charges that could have gone to their Counsel.

Speedy resolution:

Another prominent aspect of ODR is that it offers a speedy resolution of disputes. What this means is that decision can be reached within an hour or a day. Depending on the complexity of the case, and also it increases effective enforcement.

Cost-saving: Cost is also a dominant advantage of ODR, as both parties would save transport fare and accommodation cost amongst others if done at the confines of their homes. To buttress the point made above, Richard Susskind, in an article, revealed that ODR is “more radical than the traditional court setting as the process of resolving a dispute would be conducted via the internet.” What this means is that  ODR allows for a more cost-saving approach to resolving a dispute.

The flexibility of the Process: Though in Nigeria, almost everyone now owns a computer or a laptop. Hence parties are allowed or can be at the confines of their home, and at such, they will be psychologically ready to think through their decisions and can stop the session at any time.

                                                     

  Challenges facing Online Dispute Resolution (ODR)

 

Accessibility and Power failure:

Though in Nigeria, almost everyone now owns a computer or a laptop, Internet accessibility has not gotten better. It fluctuates all the time or Internet still trips off, and power failure is a massive hindrance. However, most organisations like the LMDC have a generator that provides them with electric energy. Though that can’t be said for some of the parties that cannot afford a generator. That means that the sessions can be interrupted at any time, thus posing a significant challenge that can impede the efficiency of the ODR in Nigeria.

 

The Lagos Multi-Door Courthouse Online Dispute Resolution (LMDC-ODR) Guidelines:

It is essential to point out that these guidelines do not substitute other processes; instead, they complement them.

1) The LMDC will conduct the ODR session by employing a videoconference tool known as Zoom. However, if technical hitches are encountered during the session, then an alternative channel such as Whatsapp or Skype will be deployed.

2) The link, as mentioned above, will be dispatched to the Parties and their Counsel a day to the Mediation.

3) Then, the Parties and Counsel will have to log in 15 minutes before the scheduled time. Where one Party logs in and waits for 15 minutes from the expected time for Mediation and the other Party fails to log in except otherwise agreed by the Parties, the session will cease to hold, and it will be recorded that only one Party attended the Mediation.

4) Where both Parties are logged in, the Case Manager will assign the host function to the Mediator.

5) Where Parties reach an agreement, the Terms of Settlement will be finalised by the Mediator, and the Case Manager will forward the agreed TOS first to the Claimant/Applicant for signing and then to the Defendant/Respondent via email/ WhatsApp.

6) Parties are expected to download; print, sign and scan back to the Case Manager.

It is pertinent to point out that LMDC encourages Parties to abide by the agreed Terms of Settlement (TOS); however, in the event of a breach, the Court will aid with enforcement.

 

Conclusion:

The Lagos Multi-Door Courthouse has yet again paved the way for a more straightforward backdoor dispute resolution that made it possible for parties to attend Mediation and Arbitration sessions remotely. This ensures that disputes are efficiently resolved through technology in a bid to enhance access to justice for the users or parties who seek remedies at the LMDC, particularly in this time of uncertainty posed by COVID-19.

References:

Dr Babatunde Ajibade, SAN: Technology in Law-July 20th 2020 (Presentation on Facebook)

Hazel G, Access to Justice Literature Review: Alternative Dispute Resolution in Scotland and other jurisdictions.

H. Haloush – Online Alternative Dispute Resolution as a Solution to Cross-Border
Electronic Commercial Disputes -University of Leeds

Lagos Multi-Door Courthouse (LMDC) Twitter page.

Lagos Multi-Door Courthouse – Alternate Dispute Resolution Website
<https://lagosmultidoor.org/> Accessed 10th August 2020

Umegbolu Chinwe, Dispensation of Justice: Lagos Multi-Door Courthouse (LMDC)  as a case study (Ongoing research at the University of Brighton)

The Enugu State Multi-Door Courthouse (ESMDC).

Research Internship at the ESMDC- 2019

Chinwe and the ADR Operations Unit Employees- Benjamin Aneke, Chioma Patrick-Onochie and Maureen Ugwu.

As earlier indicated in this work, the journey taken by the Lagos Multi-Door Courthouse (LMDC) from when it first started till now is a clear indication that there is a buy-in from all stakeholders and disputants that ADR through the LMDC works because of its success story -with access to justice as some literature has revealed.

There is now a shift for a change in the psyche of the citizenry that litigation is not the one way or the only way to resolve disputes but there are alternatives that are available and being provided by the court-connected ADR centre within the high court of Lagos state which is the Lagos multi-door courthouse. It is vital to point out that other states in Nigeria have emulated the LMDC by replicating the MDC Model because of its effectiveness of delivering speedy dispensation of justice to its citizenry. One can see the impact the LMDC has had on its citizenry on the justice delivery of Lagos state not only here in Lagos but in other states like Abuja, Ogun and in Enugu state.

Chinwe at the Enugu State Multi-Door Courthouse (ESMDC).

For Instance, the Enugu State Multi-Door Courthouse (ESMDC) on the 6th Sept 2018 opened its doors to the public. ESMDC was conceived to offer alternative dispute resolution methods for resolving commercial disputes and ensure speedy justice delivery within the State.

The scheme like that of Lagos is currently incorporated as part of the public justice system with the  Objectives set out in sec 4 of the ESMDC as follows:

  1. Enhance access to justice by providing alternative mechanisms to supplement litigation in the resolution of disputes;
  2. Minimise citizen frustration and delays in justice delivery by providing a standard legal framework for the fair and efficient settlements of disputes through Alternative Dispute Resolution (ADR);
  3. Serve as the focal point for the promotion of Alternative Disputes Resolution in Enugu State, and
  4. Promote the growth and effective functioning of the justice system through Alternative Dispute Resolution methods.

These objectives are the same as that of LMDC and other MDC in Nigeria because it was structured after the LMDC scheme or model, so virtually all the LMDC is empowered to do under the law, ESMDC is authorised to do same. It is essential to point out that both schemes offer facilitative mediation and not evaluative. They also don’t send evaluation back to the court because that is the underlying principle of ADR -it’s a confidential process. It’s imperative to also point out that a neutral, opens an informal platform of discussion with disputing parties. Where the discussion is without prejudice, they can either follow it through and sign the Terms of Settlement (TOS) but afterwards, they cannot carry it over to the court because of the confidential nature of ADR.

Hence, upon the completion of ADR proceedings in ESMDC, settlement agreements, which are duly signed by the parties, shall be enforced as a consent Judgement between the parties and the ADR Judge further endorses such contracts, it shall stand as a judgement of the Court.[1]

It is also essential to draw attention to some of the Functions and Powers of the ESMDC which includes-

1) Apply mediation, arbitration, neutral evaluation and any other ADR mechanisms in the resolution of such disputes as may be referred to the ESMDC, from the High Court, Magistrate Court and Courts of other jurisdiction outside Enugu State, Federal courts, private persons, Corporations, Public Institutions and Dispute Resolution Organisations,

2) Encourage disputing parties to appear before ESMDC for the resolution of their disputes;

  • Assist disputants in the resolution of their conflicts or disputes and act as administrators in the conduct of ADR proceedings locally or internationally;
  • Publicise its services by informing and sensitising the public about its facilities.

Additionally, in sec 25 (1) of the ESMDC aligned with the provisions of the order 25 Rule 1(I)(c) of the Rules of the High Court of Enugu State Civil; Procedure Rules. Which requires the judges to encourage and refer cases that are suited to ADR to ESMDC to facilitate just and speedy disposal of cases.[2] Thus the Chief Judge under the ESMDC law must initiate such practice directions as he or she may deem fit as may be necessary for the effective administration and prompt delivery of the ADR services at the ESMDC.

Sect 26(1) postulates the responsibility of the counsel, and they are well integrated as part of the ESMDC programme and have an obligation to the Court, the ESMDC and the legal profession to give due consideration and support to suggestions, Orders and Directives from the Court for an amicable settlement of ongoing matters to the ESMDC.

Sect 27(1) also provides the roles of disputing parties thus, disputing parties have a responsibility to the ESMDC to cooperate with ESMDC officials in the administration of their dispute and to comply with the Directives and Orders of Court for the adoption of ADR procedures for resolving their claims or issues.

This blogger deployed qualitative approach, by phone conversation to get feedback on how this scheme has fared so far.  Has the programme been able to achieve the overall function on its set objectives and the one set out by its predecessors (LMDC)?

This blogger asked the following questions in a bid to answer the questions mentioned above; hence a stakeholder Mr Benjamin Aneke was able to provide the following answers:

What are the scopes of cases covered by the ESMDC? At the ESMDC provides clients and their counsel with effective alternatives for resolving disputes in commercial, family, land, trespass, inheritance, defamation & libel, landlord & tenant, and other conflicts. It has also dealt with some criminal aspect like simple offences and misdemeanours only except felonies (Restorative Justice Door).

Q2: What percentage of dispute resolution does or has ESMDC cover?

   Ans: Total Case Load – 100

 

– Walk-In Matters – 46

 

– Court Referred Matters – 54 (Magistrate Court – 4, High Court -50)

 

  • Settled Cases – 26
  • Not Settled Matters -2
  • Ongoing Matters -43
  • Matters not yet at the ADR Intervention Stage- 22
  • Non- Submissions – 1
  • Matters KIV at the request of Applicant – 5
  • KIV by ESMDC -3
  • Arbitration – 1

 

Q4: Has the existence or creation of ESMDC, impacted on the volume of civil disputes before the state courts?

Ans: From our statistics, I would say yes, of course, the establishment of the ESMDC has impacted on the volume of civil disputes on the Judiciary delivery of Access to Justice. For Instance, 54 court referrals have been made so far (Magistrate Court – 4, High Court -50). And court referrals have increased from 2018 to date. The Centre is optimistic that there will be much more court referrals coming on board as the Judges and Magistrates workshop was concluded on 26th Mar 2019.

 

Q5: What dispute resolution process is preferred?

Ans: Mediation.

 

Q7. How many trained mediators and arbitrators are on the ESMDC Panel of neutrals?

Ans: Currently, ten trained Mediator is on the ESMDC panel of Neutrals. Just recently, 24 new Mediators were trained in February, who are awaiting mentorship/coaching for onward reception into the Panel of Neutral. The ESMDC is still collating the list of certified Arbitrators.

Q8. Is ESMDC now situated or located within the premises of the Enugu state courts?

Ans: Yes. The ESMDC as a court-connected ADR Centre is situated and located within the Enugu State High Court complex.

Q9: Has ESMDC made use of the settlement week?

Ans: Not Yet, The first settlement week is scheduled for July/ August 2019.

 

Conclusion:

This system is emerging because courts have become congested due to multiple factors of adjournment culture, too few judges dealing with ever-increasing of cases, lack the necessary infrastructure and many other factors. To address these complex phenomenon, Kehinde Aina in collaboration with the Nigerian government reacted by introducing the LMDC which has gone on to make a massive impact on the speedy dispensation of justice in Lagos state but also on other states like Enugu. Going by the data, unlike its predecessors Lagos State Multi-Door Courthouse (LMDC) who until recently in 2019 started taking on minor offences through the restorative justice door under the magistrate court. ESMDC started taking on minor offences from day one it opened it’s doors to the public. It has been able to accomplish so much by settling half of the cases as depicted above within a short duration of time- 8months from the date of inception September 2018 to March 2019  and they are still waxing strong (settling more claims) to date. Both states have had a varying degree of successes with their experiment with the MDC. The extent to which these innovations have impacted the lives of the disputants is enormous, but yet to be fully appreciated. But two undeniable facts are that the Multi-Door Courthouse is effective and gaining acceptance among the Nigerian populace. So while it continues to be perceived as second to litigation, it impacts on the court list or dockets of the courts remains strong, as more people are seeking solace within the confines of MDC.

[1] Section 28 (1) The Enugu State Multi-door Courthouse Law, 2018.

[2] Section 25(1) The Enugu State Multi-door Courthouse Law, 2018.

Umegbolu, Chinwe: Dispensation of Justice: Lagos Multi-Door Courthouse (LMDC) as a case study (Ongoing research at the University of Brighton)

 

An Interview with Prof Frank Sander on the Multi-Door Courthouse Mechanism.

Professor Frank Sander.

The Pound paper presentation in 1906 on “The causes of popular dissatisfaction with the Administration of Justice” at the Association annual meeting in St Paul exposed so many problems with the administration of justice in America.

However, after about Seventy (70) years of the Roscoe Pound Conference, the problem lingered on or still persisted. Hence, in this same venue, where Pound presented his paper, Prof Frank Sander (founder of the Multi-Door Courthouse) was invited to proffer a solution to the problems in 1976. It is essential to point out that the conference sparked the initial block of wide-ranging  ADR experimentation.

Prof Sander, during an interview with Mariana, narrated how he had a hurry-up education for three months and gave this talk in St. Paul called “Varieties of Dispute Processing. Subsequently, “after the conference, one of the ABA [American Bar Association] publications had an article about this talk. On the cover, they had a whole bunch of doors, and they called it the multi-door courthouse. I had given it a much more academic name, the comprehensive justice centre. Still, so often, the label you give an idea depends a lot on the dissemination and the popularity of the concept. So, I am indebted to the ABA for having this catchy name—multi-door courthouse. Now, I should explain a little bit about the idea, whatever you want to call it. MDC is a simple idea… The idea is to look at different forms of dispute resolution—mediation, arbitration, negotiation, and med-arb (a blend of mediation and arbitration.”

Flowing from the above, the focal point is that it does not matter whatever name one decides to call the multi-door courthouse. So far, one understands that the ‘revolving door mechanisms’ as this blogger chooses to call it, comprises arbitration, mediation, negotiation etc. And can be accessed through the courthouse with its ‘strong root’ firmly rooted in party autonomy. This means that parties can make ‘concessions’ or ‘compromises’ as they dim fit or want and can draft their Terms of settlement (TOS) under the supervision or guidance of a ‘neutral party’ called the ‘mediator’. This TOS can be enforced as a consent judgement by a judge in a regular court.

 

Conclusion

In summary, ‘revolving door mechanisms’  are employed by a neutral party in an informal or formal process to settle disputes or conflicts between two or more parties in a bid to find a peaceful solution.  Essentially this has ‘helped’ the justice system in different jurisdictions -in the developed economies, particularly America and in the developing economies like Nigeria, to dispense justice swiftly. Thus, has restored trust, hope, belief, and confidence of the litigants/ disputants in the judicial system. 

 References:

James R. Hagerty, Frank Sander Boosted Mediation and Other Ways to Solve Disputes Out of Court (The Wall Street Journal 2018) 

  Levin Russell, Wheeler, A.Leo (ed)  The Pound Conference Perspectives on Justice in the Future (West Publishing Co. St Paul Minnesota 1979) p. 14

Frank Sander, Keep building ADR (Alternatives to the high cost of litigation-Wiley online library 2009 p.9website: <https://onlinelibrary.wiley.com/doi/epdf/10.1002/alt.20261> accessed 20th April 2020

Sander & Mariana Hernandez Crespo, A Dialogue Between Professors Frank Sander and Mariana Hernandez Crespo the Evolution of the Multi-Door Courthouse, 5 U. St. Thomas L.J. (2008) p.667

 

The Features and Proceedings of the Lagos Multi-door courthouse (LMDC)

Chinwe at the LMDC.

Introduction

I know the question on everyone’s mind is, how does the LMDC work or functions?  The answer is merely straightforward because the primary aim of the LMDC is to supplement litigation as the accessible resort for justice. Hence providing quick, cost-effective and party-friendly access to justice.

 

The Proceedings of the LMDC

A couple of reviewed literature has indicated that parties can either walk in, or the court can refer matters to the LMDC. Finally, the court can decide to invite parties directly. So either you get a direct invite from the court or walk-in by yourself, or the court refers you. The focal point here is that these processes align with Article 2 of the LMDC Practice direction 2007.

An essential feature of the Lagos Multi-Door Courthouse Law, 2007 is that the LMDC is an independent and non-profitable body.[2] Article 2 of the LMDC Practice direction 2007 stipulates that action can begin at the LMDC through the following ways:

A)   Initiating a “referral” at the LMDC

  • The ‘Walk-in’ route:
  • The party (the claimant) can walk-in or his counsel walks into the Multi-Door Courthouse to lodge his or her complaint with Registrar.
  • The claimant pays an administrative fee.
  • Set of forms are given to be filled.
  • The opponent (the respondents) is notified about the complaint.
  • The set of forms is dispatched along with the notification of the “referral”- a referral is used in the MDC instead of a suit;
  • The respondent returns his or her filled forms and response; then, the hearing date is fixed for the first meeting.

       

B) By Court Referral:

The presiding judge in an ongoing matter; might decide to refer it to mediation; if he reckons it is an appropriate way of resolving the dispute.

  • Referrals from the courts can either be made by the judge independently or at the party’s demand- his lawyer requests a stay of proceedings in the court which will enable him (the party) try settling amicably in the multi-door courthouse.
  • Finally, if the parties reach a settlement, the court pronounces it as a consent judgement of the court, making it final and binding on the parties.

 

C) Direct Intervention

  • The LMDC can suo moto extend their magnanimity to feuding parties by extending an invitation to them.

 

Benefits of using the LMDC:

It is of paramount importance to point out some of the benefits of the ADR processes, which are as follows:

1) It is party reliant or focused.

2)It dispenses justice promptly and saves cost.

3) It is Voluntary and flexible, what this means is that parties are free to stop the mediation session at any time if they do not want to engage with the process anymore.

4) Parties are to sign the Confidential agreement before the commencement of the matter.

5) It is structured or encourages a  Win-Win approach for both parties.

 

Conclusion: 

 

Subsequently, the LMDC panel of neutrals is made up of Chief Judge of Lagos State, ADR Judges, Accredited Mediators, Arbitrators,  Neutral Evaluators from every field. It is imperative to point out that the Chief Judge of Lagos State is in charge of approving the panel above on the Neutrals’ Screening Committee’s direct recommendation.[1]

 

 

References:

 

[1] Aina, K. The multi-Door Concept in Nigeria: The Journey so Far” cited by Chinyere Ani, Alternative Dispute Resolution  48, 10.

[2] See A Law to Establish the Lagos Multi-Door Courthouse and for Other Connected Matters [2007] No. 56, vol. 40 Lagos State of Nigeria Official Gazette.