Nigeria: Representation At Arbitration Proceedings Compared To Litigation - The Recent Trend In Shell v FIRS

Introduction

The thesis of this article is the recent developments in Nigerian case law, which are inimically influencing arbitration law and practice. Taking into account the interdependent yet dichotomous relationship between public dispute resolution system through the courts and private dispute resolution systems of which arbitration is primus, there is a need to analytically and appropriately position arbitration proceedings - insisting that arbitration as proceedings is 'sui generis' of itself. It is not a mere replica of public dispute resolution systems, typical of state machinery. This article seeks to examine modern international best practice and law in arbitration, trace the current judicial trends emanating from the increasingly notorious Supreme Court decision in Okafor v Nweke¹ and to critique its ratio while analysing its precedential effect on the decision of the Court of Appeal in Shell v Fed Inland Rev Service. In the final analysis there is need for a coherent approach to parties' right to representation at arbitration and not a wholesale transplant of approach from litigation to arbitration in decisions affecting both domestic and international arbitration.

One of the principles necessary for an effective, efficient and 'safe' seat for the conduct of international arbitration is the right of parties to arbitration to representation if they so desire². This is an adjunct of one of the fundamental principles upon which arbitration best practice rests –'party autonomy' which encompasses the freedom of parties to select representatives of their choice in arbitral proceedings.

Article 5 of the United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Rules") 2010 made pursuant to the UNCITRAL Model Law on International Arbitration (Model Law) states that: 'Each party may be represented or assisted by persons chosen by it. The names and addresses of such persons must be communicated to all parties and to the arbitral tribunal. Such communication must specify whether the appointment is being made for purposes of representation or assistance. Where a person is to act as a representative of a party, the arbitral tribunal, on its own initiative or at the request of any party, may at any time require proof of authority granted to the representative in such a form as the arbitral tribunal may determine'.³

Freedom of choice of representation has historically been recognised as an important aspect of the arbitral process, allowing the parties to effectively present their case in a fashion they expect when agreeing to arbitration. That freedom is recognised in most national arbitration laws, and by most institutional arbitration rules. Despite this, laws in a few jurisdictions require that counsel in locally-seated arbitration be qualified to practice law within that jurisdiction. This was formerly true in Singapore and Japan but jurisdictions such as Thailand still impose some restrictions on choice of party representatives.

Comparative Overview – Nigeria and the Rest of the World

Restriction of legal practice before national courts, in whatever form it takes, is part of the legal tradition of most sovereign states. However, these restrictions have traditionally not been extended to arbitration. More so, with the increase in and sophistication of international commerce and the concomitant reliance on arbitration as the most effective means of resolving commercial and cross-border disputes, most countries have either amended their laws to make clear that those restrictions, which are intended for proceedings before national court do not apply arbitration proceedings conducted within their jurisdictions.

In Thailand, the now-repealed Alien Working Act B.E. 2521 categorically prohibited foreign nationals from providing any form of 'legal services' in Thailand. This position was amended in 2000, where an exception which allows foreign nationals to serve as arbitrators in proceedings held within Thailand was included. Additionally, the amendments to the Alien Working Act (retained in the currently in-force Alien Working Act B.E 2551) grant foreign lawyers the ability to practice as arbitration counsel in Thailand under limited circumstances, namely, (a) where the law governing the dispute is other than Thai law; or

(b) where the award will not be enforced in Thailand. Despite these amendments, in practice foreign lawyers often serve in a 'consultant' role in proceedings; advising Thai lawyers who are empowered to make submissions to the tribunal directly.⁴

Singapore has seen significant changes in its law since the establishment of the Singapore International Arbitration Centre (SIAC) in 1991 which resulted in the removal of the restriction against foreign lawyers representing parties in arbitration. This is entrenched in the SIAC Rules, which provides that "Any party may be represented by legal practitioners or any other representatives"⁵. Prior to this amendment there was uncertainty as to whether foreign lawyers could appear in arbitration seated in Singapore. This uncertainty stemmed from the decision in Turner (East Africa) Pte Ltd v Builders Federal (Hong Kong ) Ltd and Anor⁶, where the contention that foreign lawyers appearing in arbitration hearings are practicing as advocates and solicitors in contravention of the Singapore Legal Profession Act Cap. 161 was made, and not rejected by the court.⁷

In the United Arab Emirates (UAE), there are no restrictions on qualified lawyers from jurisdictions outside the UAE representing a party in arbitral proceedings seated in the UAE. Therefore, foreign counsel can and do regularly act as counsel or arbitrators in arbitrations seated in the UAE and the Dubai International Financial Centre (DIFC). While not a strict requirement under UAE law, best practice in the UAE dictates that lawyers appearing in arbitration seated in the UAE produce a valid power of attorney explicitly authorising them to represent the party in arbitration proceedings. In order to exercise rights of audience before the DIFC Courts, it is necessary to apply to the Registrar of the DIFC Courts to be entered into the relevant Register. Outside of the requirement to be entered into the Register, there are no restrictions applicable to arbitration proceedings seated in the DIFC.⁸

Similar provisions in favour of unrestricted choice of representation are contained in arbitration rules in some African countries such as Egypt, Mauritius and South Africa.

Article 5 of the Arbitration Rules of the Cairo Regional Centre for International Commercial Arbitration⁹ provides:

Similarly, Article 16 of the Rules of the Arbitration Foundation of Southern Africa provides that:

Clause 27 of the International Arbitration Act 2008 (Mauritian IAA) goes one step further by expressly permitting foreign lawyers to act as counsel. It provides as follows:

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Footnotes

1. (2007) 10 NWLR (PT. 1403) 521 @ 530 - 531

2. The Chartered Institute of Arbitrators "London Centenary Principles" available at http://www.ciarb.org/docs/default-source/ciarbdocuments/london/the-principles.pdf?sfvrsn=4 last visited on 27th October 2016 at 4:05pm.

3. https://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rules-revised-2010-e.pdf last visited on 27th October 2016 at 4:10pm

4. http://www.internationalarbitrationasia.com/arbitration-in-thailand-the-thai-arbitration-institute-2015/ last visited on 14th November 2016 at 1:10pm

5. Rule 20.1 of Singapore International Arbitration Centre Rules 2016, available at http://www.siac.org.sg/our-rules/rules/siac-rules-2016 , last visited on 27th October 2016 at 4:30pm

6. [1988] SCH 28

7. http://www.aseanlawassociation.org/docs/w4_singl.pdf

8. http://globalarbitrationreview.com/know-how/topics/61/jurisdictions/33/united-arab-emirates/ and http://globalarbitrationreview.com/know-how/topics/61/jurisdictions/33/united-arab-emirates/ and http://www.iclg.eo.uk/practice-areas/international-arbitration-/international-arbitration-2015/united-arabemirates last visited on 27th October 2016 at

9. http://crcica.org.eg/rules/arbitration/2011/cr_arb_rules_en.pdf. see also Article 24 of Kigali International Arbitration Centre Rules 2012 last visited on 27th October 2016 at 5:10pm

Originally published January 2017

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