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.

“ Why I am excited about my Research.”BBS Staff and Student Research Conference 2019 19th September 2019

 

Some cases/ events illustrating the problems associated with litigation  
• Fictitious case of Jarndyce v Jarndyce in the novel Bleak House by Charles Dickens 1852-53, which is the real-life case of Richard Smith that lasted up to 36years in England. Dickens presented the case in the first chapter of the book to first attack the chancery court system of England as being deficient. This case depicts or illustrates the problem associated with the legal cost of litigation in the past and still very much so in the present day England-Lord Wolf reform-1998-99 and Jackson’s reform 2013.

•The experience in America- Roscoe Pound paper presentation in 1906 on “The causes of widespread dissatisfaction with the Administration of Justice in America.

• Prof Frank Sander 1976 follow up of Roscoe Pound. Sander introduced the Multi-Door
Courthouse (MDC). This was conveyed in a speech at the National Conference on the causes of
widespread dissatisfaction with the administration of Justice St Paul Minnesota the very
the place where Pound brought to fore the causes of popular dissatisfaction or discontent of the
Administration of Justice.

• Mr Kehinde Aina’s frustration with the court system in Nigeria.

Keywords: Alternative Dispute Resolution (ADR), Access to Justice, Multi-Door Courthouse, Legal Practice and Procedure, Nigeria Courts.

 

 

 

Introduction

Snapshot of the LMDC

My work is in the family of ADR, which consists of Mediation, Arbitration and Negotiation. The researcher believes that Alternative Dispute Resolution (ADR) can be defined as a process deployed by an institution or a private individual. Within or outside a structured court system to resolve disputes in an acceptable informal manner facilitated by a neutral party.

Given that, LMDC Law (2007) defines ADR as an entire range of alternatives to litigation that involves third party intervention to assist in resolving disputes. However, African tradition had a similar system of settling disputes before the legal transplant occurred, which is the traditional or customary method of resolving a dispute. This was formalised and transplanted back to Africa. The transplanted law is what the researcher would call an ‘improved or processed ADR’ thus;, the processed ADR was never an alternative to Nigeria. Instead, litigation has been the alternative. However, in this paper, the researcher only deals with one aspect of ADR, the Lagos Multi door Court (LMDC).

According to Sec 2 (b) of the LMDC Law, ‘the LMDC is a court-connected Alternative Dispute Resolution Centre with its offices located within the High court of Lagos premises and any such other suitable locations as the Council shall approve.’

 

 

What is the Concept behind the LMDC?

The answer is, just like Equity came to mitigate the harshness of the common law, so has LMDC  reduced the harshness of litigation. Thus, the researcher is excited about her research because the pain which disputants were previously going through, irrespective of their background, has been resolved. They can now have swift access to Justice through the Multi-Door Courthouse  (MDC) either by walking in or through court referral. This new method of settling disputes became an instant hit in Lagos, Nigeria, in a landmark case involving the first elected vice president of Nigeria, Dr Alex Ekwueme. This case has been going on for seventeen (17) years; as soon as the matter was referred to Lagos Multi-Door Courthouse (LMDC) for mediation, the parties signed the terms of the settlement, it was resolved within a day.

Similarly, a recent case between famous musicians 2face Idibia and Blackface was settled via out of court settlement at the LMDC. This case which has been ongoing for almost fifteen (15) years, was resolved within two days. The circumstances mentioned above provides a particular example of the effectiveness of the LMDC. Therefore, the disputants do not need the rigorous process associated with litigation when they can have closure in one day.

 

Literature Review

My area of interest, which is exploring the effectiveness of ADR through the LMDC, has thrown up many surprises and interesting discoveries. One of the ADR proponents in this area of study is Dr Emilia Onyema, a lecturer at the  SOAS University of London. Her approach has been holistic rather than advocating for a break from the traditional government-subsidised litigation. This researcher’s approach embraces this philosophy without dampening my enthusiasm for ADR as the leading means of resolving disputes.

 

Limitations and Challenges

However, there are limitations and challenges posed in this scheme that this thesis seeks to tackle. The limitation is that the LMDC is still in its infancy; it is less than twenty years (20) since it was introduced. If it had existed for up to fifty (50) or one hundred (100)years, then one will be able to make a more reliable analysis on its effectiveness. As it is now, there is not much to be gleaned except from the two primary research carried out by Dr Emilia Onyema and Prof Akeredolu. One of the challenges is the lack of awareness since Lagos is an industrial city, and a hub for transactions of commercial businesses as such if more awareness campaign is carried out. Then it will bring it back home to the common man; also as some of the states in Nigeria are yet to embrace this scheme. Hence, this thesis will be able to tackle this by embarking on mixed methods research (MMR) which is socio-legal itself.

 

Why Socio-Legal?

The researcher argues that looking at the thesis from the socio-legal perspective is a more attractive proposition in tackling this subject matter. The LMDC is a legal transplant from America; thus, pertinent questions like why was it borrowed? What was the philosophy behind it, the experience in America, the experience in Nigeria? The problems with transplanting ideas.

Bearing in mind that the court does not operate in a vacuum, the thought behind why the law was enacted, the local condition and how this has shaped the way it functions in practice is sought to be examined. Thus, context is actually the key. How has it changed, and how is it working? Is the LMDC up to or does it achieve the set objectives behind its birth? As it is one thing for it to meet the goals, however, does it solve the problems because the researcher argues that across Africa- is a question of backlog, is a question of cost, is a question of access, and a lack of specialisation generally. Hence, the research intends to give answers to the aforementioned employing socio-legal research.

 

Conclusion
Indeed, this research will bring the needed awareness to the other parts of the land in Nigeria and the rest of sub-Saharan Africa countries that are yet to embrace this scheme. Given time, the researcher asserts that the LMDC will pose a real challenge to litigation and attract more adherents.

 

References:

  • A. Leo Levin, Russell R. Wheeler (ed), The Pound Conference Perspectives on Justice in the Future (West Publishing Co. St Paul Minnesota 1979) 166.
  • Bukola Faturoti, Institutionalised ADR and Access to Justice: The Changing Faces of the Nigerian Judicial System. (Robert Gordon University 2014) 78
  • Charles Dickens, Bleak House (Oxford University Press, 2008) 11-13.
  • Emilia Onyema, The Multi-door Court House (MDC) Scheme in Nigeria: A Case Study of the Lagos MDC (School of Social of Oriental and African Studies 2012)11
  • Stella Dawson, Alternative Courthouse in Lagos speeds the delivery of Justice (2013) (Thomas Reuters Foundation) 23
  • Ibid 23
  • Lagos  Multi-Door Court Law (LMDC) 2007
  • Lagos Multi-Door Court Law (LMDC) 2015
  • Kehinde Aina, The multi-Door Concept in Nigeria: The Journey so Far” op. cit note 48, 10.[1] 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.

Behind the Legal Frustration!

Lord Woolf  -The then Chief Justice of England and Wales.

 

Introduction

What has produced this frustration? A typical narrative would be the more population of people on earth, the more frustrated the populace will become. In the same vein, the legal system will not be able to contain the demands of the people. Well! Sorry to burst your bubble, that is not far from the truth, apart from the earth not being able to contain all the frustration. We will leave that for the scientist to decipher!

Back to the issue at hand, historically, lawyers have been known to be gentlemen. In the days of yore, Lawyers were not paid therefore at the back of the lawyers gown, there is a pocket. When the lawyer left the courtroom, the impressed client would walk behind him and put money in the said pocket. However, in this present, day, the reverse is the case. Some lawyers tout for briefs and ask for exorbitant fees from clients before the hearing of a case. This was one of the many problems associated with litigation which provoked the use of ADR. Thus, it is fair to say that the legal frustration started as a result of exorbitant cost or fees, court congestion, delay, complex technicalities in the courtroom, cost and among other factors. Thus, various jurisdictions like England, USA and Nigeria decided to seek for a solution and voila-the antidote was Alternative Dispute Resolution (ADR). With the interest of their citizens at heart, they ventured into other forms of dispute resolution to reduce the frustration of their citizenry through ADR, this was a chance of creating a win-win dichotomy, this approach saves cost, less antagonistic and non-adversarial. The Holy bible was able to encapsulate this thinking in Mattew 5:25  “Settle matters quickly with your adversary who is taking you to court. Do it while you are still with him on the way, or he may hand you over to the judge, and you may be thrown into prison. I tell you, you will not get out until you have paid the last penny.”

Against this backdrop, leveraging on maintaining cordial relationships and saving cost between parties after the disputes were settled are the underlying elements of ADR.

 

Problems with litigation

In England, the issues of costs and delay in court led to the countless quests to reform litigation. Nevertheless, ADR became a vital part of the civil justice reform agenda after the high review of civil litigation and lawyers activities undertaken by Lord Woolf in 1995.[1] Thus the introduction of the Lord Jackson reform in 2013 was to tackle the proportionality of cost and uphold justice. Hence, the overriding objective was to deal with cases equitably; and to reduce the cost and delay that has been an integral part of litigation inherent in the past system.[2]  Because prior to this review, it was discovered that smaller claims of the cost of cases were more expensive than the value of the claims. Thus, the question is has this recent restructuring of the court helped reduce the costs of litigation in the UK?

Not really, Leggatt and Williams, has shown that the cost of litigation in the past and present years discouraged a lot of litigants, thus they stated,’ for the rationale or sensible man of an average income the system is falling short except when his cause is championed by the insurance company, trade union or other such organisation.’[3]

They went ahead to elaborate on the problems of court congestion and delay in England by the statistics available in their works. These figures show that there was a significant increase in 1967 in the High court in England, which was congested and the litigants faced substantial delays.[4] For example, in London, there was a waiting time of eight to nine months for a fixed date in the Queen’s Bench Division. Also, outside London because of the priority is given to the Criminal work over half of the Civil actions entered for the trial had to be postponed from one day to the next and thus a lot of settlements were forced upon the litigants who could not afford the delays or tolerate the old court system.[5]

Though this system was later reformed in 1971, and the issue of delay reduced a bit. However, the undeniable fact was that delay still troubled the legal system, aside from the problems mentioned above, the issue of not having enough judges contributed to delay in litigation as well.

In the same vein, the statistical analysis for the reform of the final report on civil litigation costs by Lord Jackson in 2013 was prompted by the issue of cost and an associated factor of delay. It would, therefore, hold through that heavy caseloads and delay had been a significant issue in England, and it appears that nothing had significantly changed in 2014.

In different jurisdiction like the USA, the Chief justice Earl Warren, summed up the issue of court congestion and delay in the federal courts in America, he posits ‘that the shocking congestion and delay has created a critical issue or difficulty for the constitutional government in the United States of America’.[6]

In support of the above contention is the Nigerian case of Ariori v Muraimo Elemo, which began from October 1960 and took 23years to get to the supreme court of Nigeria.[7] These excessive and regular delays in the court procedures in the  Nigeria jurisdiction (I cannot resist the pun) have the same adverse effect on the administration of justice in these countries. Given the preceding, litigation from the above perception has finally run its course because the expectations for litigants from different jurisdiction has been frustrated. On the contrary, it appears in recent years, that arbitration can be perceived to be conducted in a timely fashion, and cost-efficient way than litigation. Lending credence to the above is the statistical analysis carried out by the American Bar Association that overall 78% of those surveyed believed that arbitration is faster than litigation and 56% felt that arbitration is more cost-efficient than litigation.[8]Therefore on that basis, it can be said that arbitration is efficient and effective for the simple reason that the arbitral procedures have been unequivocally tailored or streamlined to meet the needs of the parties. This is reflected from the regular changes made by the arbitral bodies to continue to meet the aspiration of its users in the process of dispute resolution.  Which is in tune with the distinctive modifications made by the different arbitral institutions in various Jurisdictions. For example, the  International Chamber of Commerce-ICC, American Arbitration Association -AAA, London Court of International Arbitration-LCIA International Centre for Dispute Resolution-ICDR, Hong King International Arbitration Centre- HKIAC, Singapore International Arbitration Centre-SIAC, Vienna International Arbitral Centre-Vienna Rules and The Swiss Rules of International Arbitration-Swiss Rules have made a significant amendment to their new rules; by modelling a thoroughly structured set of rules that will lead to a fast track proceeding and expedites growth of international commercial arbitration.[9]

While these dramatic changes are taking place in the arbitral institutions worldwide, it appears that the area of litigation seems to be content to carry on business as usual. For instance, the only remarkable thing that has happened in term of addressing the issues plaguing litigation in England in the last 50 years has probably been the Lord Wolf reform in 1999 which finally resulted in the creation of the landmark document now famously known as the Civil Procedure Rules. Following closely with the success of Lord Woolf, the government decided it was time to pay close attention to the issue of cost that has continued to plague litigation for over 200 years. The Lord Jackson reform has received favourable reviews from practitioner, judges and has been hailed as a timely intervention in an area that has been waiting for government intervention. While the Jackson reform would go a long way to address issues of cost and proportionality, it goes nowhere long enough to match up with the radical changes taking place in the arbitral institutions. Listed below are examples of efforts made by the different institution who are apparently on the verge of giving excellent business practice for proficient users worldwide and this demonstrate that litigation, because it is sponsored by the government, does not have the will and desire to match the changes taking place in the arbitral world.

EFFECTIVENESS OF ARBITRATION IN COMPARISON TO LITIGATION

It is a known fact that the court system is currently clogged with many cases sighting the grievances nursed by various parties.  However, arguments have been put forward to illustrate the effectiveness of the arbitral process. In recent years, arbitration which is under the umbrella of Alternative Dispute Resolution (ADR) can be said to be cheaper and efficient because the procedures have been explicitly tailored to meet the needs of the parties. Due to the changes in its processes and features, arbitration has become more streamlined, hence making it a useful mechanism in the reductions of parties’ participation within the national courts. It is noted that the various bodies have been set up to oversee and streamline the processes of the arbitral process in order to make it more effective.

 

  • ICC International Court of Arbitration: The ICC is an administrative arm of the ICC with the sole purpose of overseeing the arbitration process. (They are different from the national courts and the judicial system.)

A very distinctive change made by the ICC new rules and Swiss rules was the provision allowing a party to apply for an emergency arbitrator to make orders pertaining to conservatory measures that cannot await the constitution of an arbitral tribunal.[1]Consequently, this provision under Article 29 and appendix V empowers a party to appoint an emergency under two days, and this provision has been hailed as a way that the ICC has made it possible to limit the powers of the national court from interfering with the work of the tribunal.[2]

  • Vienna Rules: A very significant change made by the “Vienna rules” in their new rule under Article 45, contains a legal provision for expedited proceedings.[3]

However, this new rule will be effective or applied, only when parties explicitly included them in their arbitration agreement or consequently agree on their application.[4]On the contrary, this new rule is quite different from the emergency provision fast proceedings provided by the ICC. In contrast, the Vienna rules have taken a different approach by developing efficient rules unambiguously aimed at making proceedings more effective. An exceptionally key feature is Section 45 stipulated for sufficient time limits, restriction or limitation of procedural steps, confident that they will not encounter any issues with relating to the applicability of the New York Convention and the use of contemporary means of communications.[5] Amongst all this, Article 45(8) went further to clarify the short time limit of six months for rendering a final award which may be extended by the secretary-general and time limit will not deprive the arbitral tribunal of its jurisdiction. In other words, Article 45 provides a well-balanced set of rules for fast track proceedings without reducing the quality of proceedings and full right to be heard.

These rules are all new and the only answer that litigation might produce is the reform by Lord Woolf that is almost 15 years old. The writer of this paper is of the view that even though that are no many challenging changes made to litigation that does not make litigation inefficient. In this respect, it is averred that arbitration is more contemporary and more in tune with the needs, desire and aspiration of its users than litigation can almost ever hope to be.

  • The International Centre for Dispute Resolution (ICDR) of the AAA: The ICDR is an International division of theAmerican Arbitration Association. The centre has modified its rules to ensure that efficiency receives adequate attention. They have also organized from time to time certain firm administrative practices and in addition in recent years, introduced several new provisions to enhance the dominance of international arbitration practices.[6] These changes, unlike the ICC rules which only stipulated for the emergency arbitrator, made ICDR arbitration quite distinctive and distinguishes it from other institutional alternatives. These addresses matters such as consolidation, joinder and e-disclosure that the old rules do not have. For instance, parties find the ICDR list method for appointing arbitrators to be the best alternative to resolve the rigidity between respect for party input and the excesses of party appointments. [7] The old rules had no mention of expedited arbitration, unlike the new Article 1(4) rule which contains the appointment of a sole arbitrator and will apply in any case where no disclosed claim or counterclaim exceeds USD$250,000 exclusive interest and costs of arbitration.[8] Hence, the new rule provides for an international expedited procedure and distinguishes itself from the ICC, LCIA and UNICTRAL rule which contains the above provisions that were discussed above. Additionally, the new rules explain the institution’s listing criteria and other necessary information to facilitate the smooth administration of the arbitral proceedings. Consequently, these new rules which are a step further than the old rules in establishing methods under Article 20(7)  to avoid delay and cost, increasing both the arbitrator’s powers and the parties obligations in this regard. These rules also went further to contemplate how parties might consider new technology to increase efficiency and economy of the proceedings.[9]The major factor that distinguishes the new ICDR with the other arbitral institutions is that parties intending to choose the expedited procedures may consider including into in their clause.  It is noteworthy that these rules contain provisions for emergency arbitrators, and this will provide an effective and efficient arbitration.
  • SIAC-Singapore International Arbitration Centre :

Flowing from the above, it is evident that the arbitration rules of other arbitral institutions more gradually comprised the same provisions for the appointment of emergency arbitrators and the granting of emergency relief.

The SIAC became the first international arbitral institution based in Asia in July 2010 to adopt and introduced provisions that allowed a party to seek the appointment of an emergency arbitrator explicitly to deal with requests for urgent interim relief before a Tribunal is constituted.[10]Also, they adopted the popular expedited provisions (EP) under Rule 5 of the SIAC 2013 (Which was first introduced in July 2010) which provided that arbitrations conducted in the EP, the award to be made in within Six months. Thus, from August 15th 2014(and since the introduction of EP provisions in 2010) the SIAC has recorded a total of 143EP of which 998 applications have been granted.[11] It is apparent that the above rules serve to improve the effectiveness of the arbitral process.

It is apt to point out that also since the inception of these provisions in July 2010 SIAC has recorded over Thirty-four (34) applications of caseloads which have been filed with SIAC. Moreover, cases have come from different areas for an instant, in the shipping sector, corporate joint venture disputes, and International trade and general commercial agreements; and have involved numerous jurisdictions, like, Singaporean, Indian, Chinese and Indonesian parties. Also, 2013 saw a new record year for SIAC.[12]Building upon its landmark accomplishment in 2012, new case filings increased by a further 10% from 235 new cases received in 2012 to 259 new cases received in 2013. Additionally, Singapore’s International Arbitration Act was amended in 2012 to provide for the enforceability of the awards and orders issued by emergency arbitrators in Singapore-seated arbitrations and also arbitrations seated outside Singapore.[13] Consequently, this makes Singapore the first jurisdiction worldwide to adopt a law for the enforceability of such awards and orders in Singapore. It is evident from the above study that caseloads handled by SIAC and the number of different jurisdictions it has attracted buttresses the fact that in recent years that the popularity and effectiveness of arbitration have grown due to the flexible way that laws are being reformed on an international basis or level is to provide a speedy alternative means of resolving disputes unlike in the national courts. Hence, this study has shown that the changes made by the arbitral institution like SIAC and other bodies have directed or guided disputants or users to use arbitration to resolve their disputes. Hence, international arbitration in recent years is more secured than litigation because of the above-mentioned reforms and techniques that have been adopted to help resolve conflicts expeditiously and also supports the fact that SIAC’s is one of the fastest-growing arbitral institutions in the world.

3.3.5 LCIA-London Court of International Arbitration: The old rules of the London Court of International Arbitration do not provide for procedures in relation to emergency relief. It is apt to point out that in 2014, the LCIA is currently in the process of finalising the new rules which currently include an emergency arbitrator provision. Additionally, the new rules also have means for the expedite structure of an arbitral tribunal. A party may submit a written application to the LCIA Court setting grounds to request for the expedited formation of an arbitral tribunal. It is obvious from the new rules mentioned above demonstrates the amount of effort injected into the institutional rules to make arbitration to be dispensed in a more timely and cost-effective manner. This will ensure that users have a faster and trouble-free hearing. It is apt to point out that, the evidence provided above has shown that due to flexibility and efficiency in arbitration, litigation cannot compare nor have any responsibility for the new expedited rule and emergency arbitrators. This is not to ignore that litigation has its own provision for accelerated hearing. Part 28 of the CPR provides for fast track hearing and the effect of this, is that the hearing, and including the passing of judgement has to be completed within a given period in one day.[14]

Conclusion

The above provisions by the arbitral institution have given arbitration an advantage over litigation because it curtails the involvement of the court were parties or institution will like to apply for an emergency arbitrator who can hear urgent applications and make interim orders. Hence, it introduced a sense of contract of freedom in arbitration where parties are at liberty to structure their business trades as they desire as long as they designated for arbitration and parties are at liberty to draft their arbitration clause to include mediation if the dispute was not settled in arbitration.  This is another flexibility provided by the arbitral institution to encourage parties to select arbitration rather than litigation. Thus given arbitration the much-needed edge over litigation.

 References:

[1]Mark Baker, James Rogers, Marrion Edge (eds), NortonRoseFulbright (2013) 1 International arbitration report, 24.

[2] The ICC Rules of Arbitration 2012, Article 29.

[3] Vienna Rules of Arbitration 2013, Article 45.

[4] Ibid Article 45(1).

[5] Irene Welser, Overview-Austrian Yearbook on International Arbitration: Efficiency-Today’s Tool in Arbitration Proceedings (Austrian Publication 2014) Chapter II.

[6] Paul Friedland, John Templeman, The New ICDR International Arbitration Rules (White & Case LLP 2014) 1.

[7] Ibid 1.

[8] The International Centre for Dispute Resolution 2012, Article 1(4).

[9] Ibid Article 20(7).

[10] SIAC: Emergency Arbitrator Provisions: An update (2013)<htpp: //www.siac.org.sg> accessed 2nd July 2014.

 

[12] Singapore International Arbitration Center (Annual Report 2013) 4.

<htpp: //www.siac.org.sg> accessed 2nd July 2014.

[13] SIAC Emergency Arbitrator Provisions: An update (n110).

[14] Civil procedure Rule 1999, Part 28.

[1] Penny Brooker, Mediation Law: Journey through Institutionalism to Juridification (Routledge Taylor &Francis Group  2013) 2.

[2] Stuart Sime, Derek French, Blackstone’sGuide to the Civil Justices Reforms 2013(Oxford University Press 2013) 10-12.

[3] Andrew Leggatt, W.M.H.Williams, Cost, Delay and Other Problems of Contemporary Litigation in England (2013) N15 IALS  2.

[4] Ibid 2.

[5] Ibid.

[6] Julius Miner, William Campbell, Court Congestion: A New Approach (1959) 45 America Bar Association Journal12, 1-5.

[7] [1983]LPELR-SC.80/1981.

[8] Scot Atlas et al, ABA Section of Litigation: Taskforce on ADR Effectiveness Survey on Arbitration [2003] American Bar Association    <htpp: // www.apps.americabar.org>accessed 18th July 2014.

[9] ICC Rules of Arbitration 2012, Article29.

  • Carlo Osi, Understanding Indigenous Dispute Resolution Processes and Western Alternative  Dispute Resolution Cultivating Culturally Appropriate Methods in Lieu of Litigation. 31

<https://cardozojcr.com/vol10no1/163-232.pdf> accessed 27th September 2019

Kevin Ndubuisi Nwosu (eds), Legal Practice Skills & Ethics in Nigeria in Honour of Chief Babatunde Abiodun Ibironke, SAN (2004) Published by DCONconsulting.

Dispensation of Justice: Lagos Multi-Door Courthouse (LMDC)as a Case Study-blogpost

The Lagos Multi-Door Courthouse (LMDC) Office at Igbosere- Lagos State|Nigeria.

 

 

Introduction

The Alternative Dispute Resolution (ADR) process has been going through phases of advancement all over the world from the late ’60s to date. This is particularly characteristic of advanced world countries. Within Africa, the concept of ADR is gaining immense popularity and significance. Taking Nigeria into context, reference will be made to introducing the Lagos Multi-Door Courthouse (LMDC) in 2002. The Lagos Multi-Door Courthouse (MDC) was conceived to provide clients and their counsel with practical alternatives for resolving disputes in commercial and other types of disputes as part of the public justice system.

 

The Relevance of Using Lagos State as a Case Study

Lagos is one of the biggest commercial or industrial cities in Africa.[1] Almost all new ideas of Law or legal development of the legal system in Nigeria originated from Lagos state, the federal capital territory of Nigeria, from 1914-1991. For instance, Lagos was the first to introduce the new civil procedure rules in 2004 based on Lord Woolf’s reform.[2] Lagos is widely known in Nigeria as the “Centre for Excellence.” Population wise, as of 2019, Lagos has over a 25million inhabitants with over 250 ethnic groups represented in Lagos as residents with a reasonable number of international or foreign citizens resident for various economic purposes. [3] Also, Lagos is blessed with enormous water resources and land resources, thus making Lagos inevitably the commercial capital of Nigeria and Africa due to the seaport location in Lagos.  Hence, the attraction of various international companies like the six major foreign oil companies, which dominated the Nigerian oil industry today (Shell, Exxon Mobil, Chevron, Elf, Agip and Texaco), were already present in Lagos- Nigeria, to set up their businesses in Lagos by the early 1960s.[4]

In the same vein, Lagos is the first state and first Africa continent to create a Multi-Door Courthouse (MDC) for speedy dispensation of justice. This means that it provides an efficient justice system that will allow trust and confidence in the running of its state that will permit or enable business and growth to strive; this has sustained the tempo since its creation in 2002. Thus, the blogger refers to the LMDC as ‘Jagaban’ (Jagaban-boss of all bosses but in this context means ‘first of its kind’).

The scheme is currently incorporated as part of the justice system. Its relevance has developed due to its unique way of linking cases to appropriate forums for appropriate settlements through ‘the Multiple doors’- Arbitration, Mediation, Negotiation, Early Neutral Evaluation and the Hybrid process. Enquiries or questions have been asked about its simplicity and amenable nature, especially when compared to litigation. The blogger seeks to answer these questions and provide insight into the effectiveness and its impact on other states so far, particularly the Enugu State Multi-Door Courthouse (ESMDC).

                                                    

 The Causes of Conflict / Disputes

Generally, when a person wants to achieve specific goals and the person’s goals were not met, they experience frustration which leads to anger. This anger can be channelled out in maladaptive ways. It is essential to point out that if the societal expectation is too heavy on the individual or they cannot meet up with what is expected of them from their group, this can lead to conflict or dispute.  It is essential to state that this blogger would use the terms dispute and conflicts interchangeably.

 

Through the View Lens of Maslow’s Law

One of the ‘needs’ of human beings, according to Abraham Maslow,[1], is a sense of belonging(ness)[2].  This is one of the needs that a human being psychologically needs to be able to feel well, but only when they belong and feel accepted within a  particular group.[3] Similarly, Burton asserted that human needs are usually the core cause of conflict between people.[1] He went ahead to describe the interaction of human conflicts / disputes and how they seem to affect the result of conflict or dispute, the individual or group of individuals.[2]  Especially in Africa, where one must introduce themself within the group. For example, if you meet a man in the village and ask him ‘who you are? He will respond with an answer ‘I am Obiesie, son of Nkachukwu Egbunike.’

 

How is Maslow’s theory related to Dispute Resolution in Africa?

Everybody comes from a kindred, so an average Africa defines himself within his family, within his group. The African would be defined by what his group says of him or thinks of him. This is a common thing and is a general practice in Africa. Although we are all social beings, its society (pun intended) influences them in African society; what they usually think of themselves is what people in the group or unit, like their parents, friends, siblings, and colleagues, think of them.

Professor Ebigbo’s harmony restoration theory validated the above viewpoint:

“African views an individual in its holistic totality within oneself in relation to the forces the individual believes in: the ancestors, the various spirits, powerful forces emanating from the supreme being (God) and infused into trees, humans, forces of nature, fauna and flora, and of course in smaller gods. For the African, one is not at ease, or is indeed ill, if there is an alteration’ or conflict between himself and the person’s world of relationships.’ [1] … “The relationships that are important to the individual outside the family also belong to the mesocosmos, in other words, co-workers, classmates, roommates, co-religious members, friends, etc. To the extent that there is a relationship between the individual and places, situations, objects, animals such as pets, etc. The mesocosmos and the exocosmos represent a vital world of relationship to the ancestors, spirits, deities, gods, and indeed all forces outside of one but which are outside the concrete world of relationships.”[2]

 Putting the above view into context, where dispute or conflict has reared its ugly head, then it follows through that ‘things have fallen apart’ between oneself and/ or his unit or group, which invariably leads to frustration and distress. This frustration or distress will be restored as soon as the dispute is resolved. I embrace the aforementioned theory made by Professor Ebigbo but not wholly because faulty relationships can be likened to conflict cannot be entirely resolved’ without those groups or kindred sitting down to listen and dialogue. Hence the person who is at fault will either apologize to the kindred/ groups or unit after they must have given their verdict.

Consequently, harmony/ peace is restored, which is the main strongholds of ‘traditional dispute resolution’; this practically enables living as ‘one’, which is one of the many benefits of the Traditional African Society (TAM)’ [7]  [8]‘. This saying in African, “a tree cannot make a forest[9],” validates the above thinking – this is relatable or in tune with how disputes or conflicts are resolved in Nigeria.

It is essential to point out that in the case of a land dispute, both parties will make concessions by either giving up the land entirely or half of the land before the dispute is resolved or a rift in their relationship will be fully mended. The above viewpoint is supported by the recent case of Chief Emenike Mgbemena v. Nze Ezeakaibie[12], where the Traditional Supreme Council of Obosi (TSCO) elder/ kindred ( a neutral party) settled the dispute between the aforementioned parties after listening to the complaint from both parties, a verdict was reached.  Nze Ezeakaibie was asked to apologize to Chief Emenike for peace to reign in both families. This case validates the point regarding dispute resolution in Africa – as people who are not on good terms with their families and communities tend to suffer a lot of seclusion like ‘ostracisation’, which is still prevalent to date. It is pertinent to point out that in Africa, Nigeria to be precise, they do not have enough psychotherapists, but what comes to help in health problems and in the same vein in restoring conflict/dispute is the social groups –  the elders, the families, the strong extended families system, the kindred, the villagers and in recent years the churches [13] and the mediators.

The above-stated assertion resonates with the Ubuntu philosophy.[1] which signifies respect for humanity, respect for living in harmony with their group. [3].On the other hand, some proponents of the Traditional African Method of Settling Disputes (TAMSD) have insisted that this dispute settlement service brings parties involved closer. However, some leaders in the alternative dispute resolution movement have pointed out that these traditional institutions are no longer as important as they once were in fostering social harmony or settling disputes.

 

 African or Alternative Dispute Resolution (ADR)?

Greco has argued that the various communities in Africa have used Alternative Dispute Resolution (ADR) before the advent of the colonial masters. For example,  in East Africa-(Uganda), the Europeans’ arrival ushered in the new era or style of ADR.

On the other hand, Professor Nadar described this as a modern ADR movement that seeks a kind of global uniformity. In Africa, Christian missionaries began to replace the local dispute resolution structure, which often varied from village to village, with one that was more consistent and more European.[1] As colonialism began to fade, there was a belief that the Africans needed to be educated in the Western rule of Law to govern them rightly to become more civilised.[2]. However, Elisabetta Grande begged the question. Does this mean that we are experiencing a new kind of legal transplant, a transplant from less complex to more complex societies?

On the contrary, Dr Emilia Onyema stated that there were different methods of settling disputes in various communities in Nigeria before the colonial era. Though they were no unified or centralized States in their modern construct in these communities. Thus, the idea of state-sponsored and managed dispute resolution such as litigation was unknown in these communities.[4] Therefore litigation was an alternative to these African communities by their European Colonizers.

Conversely, Okereafoezeke, in his book, observed that the British colonists forcibly changed the face of social control and in Igbo and other parts of Nigeria by imposing English Law and Justice on Nigerians.[5] Consequently, litigation thrived than the private and traditional processes of dispute resolution.[6] Dr Onyema observed that one of the reasons for this shift was the availability of the state-backed sanctions in support of the state courts’ decisions.

Hence, the underlying factor of the Traditional African Method of Settling Disputes (TAMSD) is that it thrives on peace, compromise and consent of both parties.  These are what legitimizes the entire decision, which is similar to the western ADR. However, the rise of the ADR mechanism with the same attributes/ benefits of the TAMSD has resulted in managing disputes effectively and maintaining a cordial/ business relationship. Hence, ADR is not an alternative for Africa; rather, it is an African original way of settling disputes.

 

The Birth of the Jagaban -Lagos Multi-Door Courthouse (LMDC)

The ADR centre is a public-private partnership between the High court of Justice Lagos state and the Negotiation and Conflict Management Group under the sponsorship of Kehinde Aina who is the founder of the NCMG and the Multi-Door court scheme in Nigeria. Mr Aina stated that he was inspired by the Multi-Door Court Scheme in America, which was founded by the late Professor Frank Sander in 1976. Thus  the LMDC was birthed in 2002, and LMDC law was enacted in 2007 (and reviewed in 2015) in a bid to reduce the dockets of the court and promote a faster case flow management system which aligns with the overriding objective of the LMDC as stipulated in Section 29 of LMDC Act 2007 is as follows:

Chinwe with the LMDC founder-Mr Kehinde Aina

a) To enhance access to justice by providing alternative mechanisms to supplement litigation in the resolution of disputes;

b) minimize citizen frustration and delays in justice delivery by providing a standard legal framework for the fair and efficient settlement of disputes through Alternative Dispute Resolution (ADR)

c) serve as the focal point for the promotion of Alternative Dispute  Resolution in Lagos State; and

d) promote the growth and effective functioning of the justice system through Alternative Dispute Resolution methods.

Aside from the aforementioned LMDC Law, there are other functions and roles of prominent justice stakeholders, some of which are as follows:

 

The Purpose of the Court:– Section 16 of the LMDC Law states that the high court of Lagos state controls and manages proceedings effectively. This includes a referral by the court to use ADR to explore settlement in LMDC whenever one of the parties is willing to do so.

The ADR Judge’s role:– Under Section 15 of the same Law -Judge’s are mandated to require the attendance of defaulting party before him to show cause why he or she has refused to submit to ADR. After such a hearing, the ADR judge can give orders as he/ she deems fit in the event of fulfilling the overriding objectives of the LMDC.

The Role of the Lawyer:– By section 17(3a), a lawyer is expected to give due consideration, support to suggestions, directives and orders from the court for an amicable settlement or referral of ongoing matters to the LMDC.

The Role of Parties:– Section 18 stipulates that the disputing parties are to cooperate with the administrators of the LMDC in administering their dispute settlement. They also have a responsibility to seriously consider the adoption of the ADR process and procedures when encouraged by the courts, their lawyers or the LMDC.

Enforcement:- Section 19 of the LMDC Law provides that on the completion of an ADR proceeding, settlement agreements which are signed by the parties shall be enforceable as a contract between the parties. Consequently, if such agreements are endorsed by an ADR judge, they shall be deemed to be applicable as a consent judgement of the High Court of Lagos State.

The provisions of these Laws demonstrate that the LMDC is a fast track dispute resolution centre and carries the stamp of enforcement like any other judgment of the High court of Nigeria. It is essential to point out that LMDC is the first of its kind in Nigeria and in Africa continent is set to promote and encourage the use of Court-connected ADR (which is similar to the Traditional African Method of Settling Disputes) for the efficient settlement of all kinds of cases in Lagos state.

 

The Humble Beginnings of the Lagos Multi-Door Courthouse (LMDC)

The first office space took off in a thirty-five (35) square metre chamber of a judge with only a cubicle-like room for mediation. However, it grew wings just like an eagle who is anxious to catch food; the resulting effect is that in over three years, its operations and office space increased. The first extension was in December 2002 when the criminal court was vacated for the centre’s use. The three other extensions that comprise a storage room, the account’s section, and the then court Ten (10) took place between 2003 and 2005. Fast forward to 2019, LMDC sits in an upstairs building with about 30 rooms or more in the premises of the High Court of Lagos State in Igbosere, with another office (ADR Track) in Ikeja, which is in Lagos mainland. As depicted in this work, the expansion and the work the LMDC team has done so far simply demonstrate the LMDC team’s resilience, bearing in mind the ‘Nigerian factor.’ Despite that, the LMDC has thrived and thus far has contributed to the decongestion of the court’s dockets in Lagos State.

 

Conclusion

The blogger has explored some preliminary background issues relating to Lagos state’s court structure and why it was necessary to introduce the LMDC in the Nigerian clime, which is similar to the TAMSD- to enhance access to justice.

In furtherance, the work laid a brief foundation on the history of TAMSD, what ADR means in Nigerian jurisdiction and highlights its contribution and benefits in terms of restoring relationships and settling disputes informally.

 

References: 

Elisabetta Grande,  Dispute Resolution, Africa and the Structure of Law and Power: The Horn in Context  (Journal of African Law, 1999, Vol. 43, No. 1 1999)

[4] Chinwe Umegbolu, Dispensation of Justice: Lagos Multi-Door Courthouse  (LMDC)  as a Case Study in Nigeria. (Ongoing research at University of Brighton 2018-2021)

[1] Mfuniselwa Bhengu, ‘The Locus of Ubuntu within the Christian Church in Africa’ (2016) Academia Edu p.10

[2] Center for Khemitology, ‘ Ubuntu Philosophy’ Short Course attended by the blogger  2020) accessed 29th March 2020

[3] Bhengu, ‘The Locus of Ubuntu within the Christian Church in Africa’

Diane Moore, Methodological Assumptions and Analytical Frameworks Regarding Religion Part One (2020) p.2 (Course attended by the blogger).

[1] Peter Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ (2017) International Journal for Psychotherapy in Africa (2:1) p.22

[2] Ibid

[3] Innocent Uwah, ‘The Representation of African Traditional Religion and Culture in Nigeria Popular films’ (2011) Religion, Media and Politics in Africa p. 81

[4]Toyin Falola, Heaton, Matthew, A History of Nigeria (Cambridge University Press 2008) p.5

[5] Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ p.22-23

[6] Ibid

[7] Chinwe Umegbolu, ‘Bargaining in the Shadow of the Law: The Facts of Divorce As They Stand Today’ (2020) 39 (1) Resolution Institute | the arbitrator & mediator p.3

[8] Ibid

[9] Ugo Ikwuka, ‘Perceptions of Mental Illness in Southeastern Nigeria: Causal Beliefs, Attitudes, Help-Seeking Pathways and Perceived Barriers To Help-Seeking’, University of Wolverhampton 2016)p.i

[10] Sherif, Group Conflict and Co-operation: Their Social Psychology p.21

[11] Umegbolu, ‘Bargaining in the Shadow of the Law: The Facts of Divorce As They Stand Today’

[12]Chief Emenike Mgbemena v. Nze Ezeakaibe (Traditional Supreme Council Obosi 2019 unpublished)

[13] Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ p.50

[1] Olexandrivna, ‘The Conflict within the Concepts of Needs Abraham Maslow and John Burton: Archetypal Analysis’

[2] Ibid

[1] Zozulia Olexandrivna, ‘The Conflict within the Concepts of Needs Abraham Maslow and John Burton: Archetypal Analysis’ (2017) Faculty of humanities and social technologies, National Technical University “Kharkiv Polytechnic Institute”, Ukraine p.93-94.

[2] Ibid

[3] Saul Mcleod, ‘Maslow Hierarchy of Needs’ ( 2007) Highgate Counselling Centre p.2

[4] Olexandrivna, ‘The Conflict within the Concepts of Needs Abraham Maslow and John Burton: Archetypal Analysis’

[5] Ibid

[6] Peter Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ (2017) International Journal for Psychotherapy in Africa (2:1) p.22

[7] Ibid

[8] Innocent Uwah, ‘The Representation of African Traditional Religion and Culture in Nigeria Popular films’ (2011) Religion, Media and Politics in Africa p. 81

[9]Toyin Falola, Heaton, Matthew, A History of Nigeria (Cambridge University Press 2008) p.5

[10] Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ p.22-23

[11] Ibid

[12] Chinwe Umegbolu, ‘Bargaining in the Shadow of the Law: The Facts of Divorce As They Stand Today’ (2020) 39 (1) Resolution Institute | the arbitrator & mediator p.3

[13] Ibid

[14] Ugo Ikwuka, ‘Perceptions of Mental Illness in Southeastern Nigeria: Causal Beliefs, Attitudes, Help-Seeking Pathways and Perceived Barriers To Help-Seeking’, University of Wolverhampton 2016)p.i

[15] Sherif, Group Conflict and Co-operation: Their Social Psychology p.21

[16] Umegbolu, ‘Bargaining in the Shadow of the Law: The Facts of Divorce As They Stand Today’

[17]Chief Emenike Mgbemena v. Nze Ezeakaibe (Traditional Supreme Council Obosi 2019)

[18] Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ p.50

[1] Ibid

[2] Ibid,

[3]William Idowu, ‘African Jurisprudence and the Reconciliation Theory of Law’ (2006) 37 Cambrian L Rev 1 p.5

[4] Emilia Onyema, Rethinking the Role of African National Courts in Arbitration (Published Wolters Kluwer 2018) p.13.

[5] Nonso Okereafoezeke, Law and Justice in Post -British Nigeria Conflicts and Interactions between Native and Foreign Systems of Social Control in Igbo (Library of Congress cataloguing-in-publication Data 2002) p. 13.

[1] Theodora Kio-Lawson, ‘Lagos State Judges take a stand on ADR’ BusinessDay (Nigeria) <www.businessdayonline.com> accessed 20th February 2020 p.37

[1] Sir Alan Burns, History of Nigeria (Updated Paperback Edition of the Eighth Edition with revisions George Allen & Unwin Ltd 1978) 18.

[2] A Compendium of Articles Alternative Dispute Resolution (ADR): The Association of Multi-Door Courthouses of Nigeria. p.7

[3] Ibid (n1)18.

  1. [4] Jedrzej George Frynas, Litigation in the Nigeria Oil Industry: A Socio-Legal Analysis of the Legal Disputes Between Oil Companies and Communities (A Thesis Submitted for the Degree of PhD at the University of St Andrews 1999) 18.
  2. A Stone Plaque discovered by the blogger at the Lagos Multi-Door Courthouse…The ADR Centre… (Date of Launch- 2012)

3. Lagos Multi-Door Courthouse Law 2007

4. Lagos Multi-Door Courthouse  Law 2015

5. The Lagos Multi-Door Courthouse…The ADR Centre… The Lagos Multi-Door Courthouse Neutrals’ Handbook 2016. p10-11

6.Johnson Olawale, What ‘Jagaban’ really means in Nigeria accessed 1st January 2020

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