Thursday, January 26, 2017
LEGAL PERSONALITY
Legal personality
A legal fiction, which is used to abstract away the differences between natural persons, juridical persons and other entities such as countries "Business entity" redirects here. For the concept in computer science, see Business entity (computer science). For types of business entities, see Types of business entity. To have legal personality means to be capable of holding legal rights and obligations[1][2] within a certain legal system, such as entering into contracts, suing, and being sued.[3] Legal personality is a prerequisite to legal capacity, the ability of any legal person to amend (enter into, transfer, etc.) rights and obligations. In international law, consequently, legal personality is a prerequisite for an international organization to be able to sign international treaties in its own name.
A holder of legal personality is called as a person (Latin: persona). Persons are of two kinds: natural persons (also called physical persons) and juridical persons (also called juridic, juristic, artificial, legal, or fictitious persons, Latin: persona ficta) – entities such as corporations, which are treated in law as if they are persons.[1][4][5] While human beings acquire legal personhood when they are born, juridical persons do so when they are incorporated in accordance with law.
Juridical persons
Artificial personality, juridical personality, or juristic personality is the characteristic of a non-living entity regarded by law to have the status of personhood.
A juridical or artificial perso (Latin: persona ficta; also juristic person) has a legal name and has certain rights, protections, privileges, responsibilities, and liabilities in law, similar to those of a natural person. The concept of a juridical person is a fundamental legal fiction. It is pertinent to the philosophy of law, as it is essential to laws affecting a corporation (corporations law).
Juridical personality allows one or more naturalpersons (universitas personarum) to act as a single entity (body corporate) for legal purposes. In many jurisdictions, artificial personality allows that entity to be considered under law separately from its individual members (for example in a company limited by shares, its shareholders). They may sue and be sued, enter contracts, incur debt, and own property. Entities with legal personality may also be subjected to certain legal obligations, such as the payment of taxes. An entity with legal personality may shield its members from personal liability.
In some common law jurisdictions a distinction is drawn between corporation aggregate (such as a company, which has a number of members) and a corporation sole (which is where a person's public office is deemed to have a separate personality from them as an individual). Both have separate legal personality. Historically most corporations sole were ecclesiastical in nature (for example, the Archbishop of Canterbury is a corporation sole), but a number of other public offices are now formed as corporations sole.
The concept of juridical personality is not absolute. "Piercing the corporate veil" refers to looking at the individual natural persons acting as agents involved in a company action or decision; this may result in a legal decision in which the rights or duties of a corporation or public limited company are treated as the rights or liabilities of that corporation's members or directors.
The concept of a juridical person is now central to Western law in both common-law and civil-law countries, but it is also found in virtually every legal system.
Examples
Some examples of juridical persons include:
Cooperatives (co-ops), business organization owned and democratically operated by a group of individuals for their mutual benefit. Corporations are bodies corporate created bystatute or charter. A corporation sole is a corporation constituted by a single member, in a particular capacity, and that person's successors in the same capacity, in order to give them some legal benefit or advantage, particularly that of perpetuity, which a natural person could not have had. Examples are a religious officiant in that capacity, or The Crown in the Commonwealth realms. A corporation aggregate is a corporation constituted by more than one member.
Municipal corporations (municipalities) are "creatures of statute." Other organizations may be created by statute as legal persons, including European economic interest groupings (EEIGs).
Unincorporated associations, that is aggregates of two or more persons, are treated as juridical persons in some jurisdictions but not others.
Partnerships, an aggregate of two or more persons to carry on a business in common for profit and created by agreement. Traditionally, partnerships did not have continuing legal personality, but many jurisdictions now treat them as having an independent legal personality.
Companies, a form of business association that carries on an industrial enterprise, are often corporations, although companies may take other forms, such as trade unions, unlimited companies, trusts, and funds. Limited liability companies—be they a private company limited by guarantee, private company limited by shares, or public limited company—are entities having certain characteristics of both a corporation and a partnership. Different types have a complex variety of advantages and disadvantages.
Sovereign states are legal persons. In the international legal system, various organizations possess legal personality. These include intergovernmental organizations (the United Nations, the Council of Europe) and some other international organizations (including the Sovereign Military Order of Malta, a religious order).
The European Union (EU) has legal personality since the Lisbon Treaty entered into force on 1 December 2009. That the EU has legal personality is a prerequisite for the EU to join the European Convention on Human Rights (ECHR). However, in 2014, the EU decided not to be bound by the rulings of the European Court of Human Rights. Temples, in some legal systems, have separate legal personality.
Not all organizations have legal personality. For example, the board of directors of a corporation, legislature, or governmental agency typically are not legal persons in that they have no ability to exercise legal rights independent of the corporation or political body which they are a part of.
Creation and history of the doctrine
The concept of legal personhood for organizations of people is at least as old as Ancient Rome: a variety of collegial institutions enjoyed the benefit under Roman law.
The doctrine has been attributed to Pope Innocent IV, who seems at least to have helped spread the idea of persona ficta as it is called in Latin. In canon law, the doctrine of persona ficta allowed monasteries to have a legal existence that was apart from the monks, simplifying the difficulty in balancing the need for such groups to have infrastructure though the monks took vows of personal poverty. Another effect of this was that as a fictional person, a monastery could not be held guilty of delict due to not having a soul, helping to protect the organization from non-contractual obligations to surrounding communities. This effectively moved such liability to individuals acting within the organization while protecting the structure itself, since individuals were considered to have a soul and therefore capable of being guilty of negligence and excommunicated.
In the common law tradition, only a person could sue or be sued. This was not a problem in the era before the Industrial Revolution, when the typical business venture was either a sole proprietorship or partnership—the owners were simply liable for the debts of the business. A feature of the corporation, however, is that the owners/shareholders enjoyed limited liability—the owners were not liable for the debts of the company. Thus, when a corporation breached a contract or broke a law, there was no remedy, because limited liability protected the owners and the corporation wasn't a legal person subject to the law. There was no accountability for corporate wrongdoing.
To resolve the issue, the legal personality of a corporation was established to include five legal rights—the right to a common treasury or chest (including the right to own property), the right to a corporate seal (i.e., the right to make and sign contracts), the right to sue and be sued (to enforce contracts), the right to hire agents (employees) and the right to make by-laws (self-governance).
Since the 19th century, legal personhood has been further construed to make it a citizen, resident, or domiciliary of a state (usually for purposes of personal jurisdiction). In Louisville, C. & C.R. Co. v. Letson, 2 How. 497, 558, 11 L.Ed. 353 (1844), the U.S. Supreme Court held that for the purposes of the case at hand, a corporation is "capable of being treated as a citizen of [the State which created it], as much as a natural person." Ten years later, they reaffirmed the result of Letson, though on the somewhat different theory that "those who use the corporate name, and exercise the faculties conferred by it," should be presumed conclusively to be citizens of the corporation's State of incorporation. Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 329, 14 L.Ed. 953 (1854). These concepts have been codified by statute, as U.S. jurisdictional statutes specifically address the domicile of corporations.
Extension of basic rights to legal persons
Brazil
The term legal person ("pessoa jurÃdica" in Portuguese) is used in legal science for designating an entity with rights and liabilities which also has legal personality. Its regulations are largely based on Brazil's Civil Code, among other normative documents.
Germany
Article 19(3) of the German Constitution sets forth: "Fundamental rights shall also apply to domestic artificial persons insofar as the nature of such rights shall permit.
Italy
In Italy trade unions have legal personality, as stated in Article 39, Paragraph 4 of the Constitution:
Registered trade unions are legal persons. They may, through a unified representation that is proportional to their membership, enter into collective labour agreements that have a mandatory effect for all persons belonging to the categories referred to in the agreement. — The Italian Constitution
People's Republic of China
For a typical example of the concept of legal person in a civil law jurisdiction, under the General Principles of Civil Law of the People's Republic of China, Chapter III, Article 36., "A legal person shall be an organization that has capacity for civil rights and capacity for civil conduct and independently enjoys civil rights and assumes civil obligations in accordance with the law."[13] Note however that the term civil right Legal personality a legal fiction, which is used to abstract away the differences between natural persons, juridical persons and other entities such as countries
"Business entity" redirects here. For the concept in computer science, see Business entity (computer science). For types of business entities, see Types of business entity.
To have legal personality means to be capable of holding legal rights and obligations[1][2] within a certain legal system, such as entering into contracts, suing, and being sued.[3] Legal personality is a prerequisite to legal capacity, the ability of any legal person to amend (enter into, transfer, etc.) rights and obligations. In international law, consequently, legal personality is a prerequisite for an international organization to be able to sign international treaties in its own name.
A holder of legal personality is called as a person (Latin: persona). Persons are of two kinds: natural persons (also called physical persons) and juridical persons (also called juridic, juristic, artificial, legal, or fictitious persons, Latin: persona ficta) – entities such as corporations, which are treated in law as if they are persons.[1][4][5] While human beings acquire legal personhood when they are born, juridical persons do so when they are incorporated in accordance with law.
Contents
Juridical persons
Artificial personality, juridical personality, or juristic personality is the characteristic of a non-living entity regarded by law to have the status of personhood.
A juridical or artificial person (Latin: persona ficta; also juristic person) has a legal name and has certain rights, protections, privileges, responsibilities, and liabilities in law, similar to those of a natural person. The concept of a juridical person is a fundamental legal fiction. It is pertinent to the philosophy of law, as it is essential to laws affecting a corporation (corporations law).
Juridical personality allows one or more natural persons (universitas personarum) to act as a single entity (body corporate) for legal purposes. In many jurisdictions, artificial personality allows that entity to be considered under law separately from its individual members (for example in a company limited by shares, its shareholders). They may sue and be sued, enter contracts, incur debt, and own property. Entities with legal personality may also be subjected to certain legal obligations, such as the payment of taxes. An entity with legal personality may shield its members from personal liability.
In some common law jurisdictions a distinction is drawn between corporation aggregate (such as a company, which has a number of members) and a corporation sole (which is where a person's public office is deemed to have a separate personality from them as an individual). Both have separate legal personality. Historically most corporations sole were ecclesiastical in nature (for example, the Archbishop of Canterbury is a corporation sole), but a number of other public offices are now formed as corporations sole.
The concept of juridical personality is not absolute. "Piercing the corporate veil" refers to looking at the individual natural persons acting as agents involved in a company action or decision; this may result in a legal decision in which the rights or duties of a corporation or public limited company are treated as the rights or liabilities of that corporation's members or directors.
The concept of a juridical person is now central to Western law in both common-law and civil-law countries, but it is also found in virtually every legal system.
Examples
Some examples of juridical persons include:
Cooperatives (co-ops), business organization owned and democratically operated by a group of individuals for their mutual benefit. Corporations are bodies corporate created by statute or charter. A corporation sole is a corporation constituted by a single member, in a particular capacity, and that person's successors in the same vein would
United StatesEdit
In part based on the principle that legal persons are simply organizations of natural persons, and in part based on the history of statutory interpretation of the word "person", the US Supreme Court has repeatedly held that certain constitutional rights protect legal persons (such as corporations and other organizations). Santa Clara County v. Southern Pacific Railroad is sometimes cited for this finding because the court reporter's comments included a statement the Chief Justice made before oral arguments began, telling the attorneys during pre-trial that "the court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
Later opinions interpreted these pre-argument comments as part of the legal decision.[14] As a result, because of the First Amendment, Congress may not make a law restricting the free speech of a corporation, a political action group or dictating the coverage of a local newspaper,[15] and because of the Due Process Clause, a state government may not take the property of a corporation without using due process of law and providing just compensation. These protections apply to all legal entities, not just corporations.
A prominent component of relevant case law is the Supreme Court decision Citizens United v. Federal Election Commission, which ruled unconstitutional certain restrictions on corporate campaign spending during elections.[16]
Sunday, January 22, 2017
ALTERNATIVE DISPUTE RESOLUTION - ARBITRATION, MEDIATION AND NEGOTIATION
ARBITRATION
Arbitration is a process of dispute resolution in which a neutral third party called – arbitrator, renders a decision after hearing at which both parties have an opportunity to be heard.
In Kano State Urban Dev. Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 SC, an arbitration was defined as the reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner by a person or persons other than a court of competent jurisdiction.
Arbitration may be voluntary or compulsory. In a voluntary arbitration, the disputing parties select the arbitrator who has the power to make binding judgment. Thus, it is by mutual and free consent of the parties. Whilst compulsory arbitration is that which occurs when the consent of one of the parties is enforced by statutory provisions.
An arbitrator is a neutral person either chosen by the parties to a dispute or appointed by a court, to hear the parties’ claims and render a decision.
PRINCIPLES AND LAWS/RULES GOVERNING ARBITRATION AND CONCILIATION IN NIGERIA
There are two main sources of Nigerian Arbitration Law namely –
The Common law and the doctrines of equity;
Statutes.
COMMON LAW AND DOCTRINES OF EQUITY
The common law means the case law of Nigeria and such principles of English Common Law and doctrines of equity as are still applicable in Nigeria. As a general rule, the common law of England and its doctrines of equity apply in Nigeria except where they have been modified or rejected in Nigeria either by statute or by courts.
It should however be noted that Nigerian courts still rely very heavily on English decisions as persuasive authorities in their own decisions.
STATUTES
The Nigerian Arbitration law is largely derived from statutes both foreign and local. The foreign ones are –
The UNCITRAL Model Law;
The UNCITRAL Arbitration Rules; and
The New York Convention.
While the local statutes are –
The Arbitration ACT 1914; and
The Arbitration and Conciliation Decree 1988.
THE UNCITRAL MODEL LAW
UNCITRAL means the United Nations Commission on International Trade Law.
This was approved because of the need to liberalize international commercial arbitration by limiting the role of national courts and allowing the parties freedom to choose how their disputes should be determined.
It was also to provide for a framework for the conduct of international commercial arbitrations, so that in the event of the parties being unable to agree on procedural matters, the arbitration would nevertheless be capable of being completed.
The law has the advantage that it is not a treaty but a model law which may be adopted with necessary amendments to suit each jurisdiction. Furthermore, it is limited to disputes relating to international contracts leaving each nation which adopts it still free to make provisions for purely domestic arbitration.
Lastly, it was made to aid the enforceability of awards and to clarify certain controversial practical issues.
THE UNCITRAL ARBITRATION RULES
The major arbitral institutions have their own rules which are up-to-date for resolution of disputes contained in the UNCITRAL Arbitration Rules.
The UNCITRAL Arbitration Rules are the same with the rules that are contained in the First Schedule to the Arbitration and Conciliation Act, which are for both domestic and international arbitrations.
NEW YORK CONVENTION
This is regarded as the most important international treaty relating to international commercial arbitration. It is an improvement of the Geneva Convention of 1927 because it provides for a much more simpler and effective method of obtaining recognition and enforcement of foreign arbitral awards.
The convention has now been made expressly applicable to Nigeria by section 54 of the Arbitration and Conciliation Decree, 1988.
The convention provides for the recognition of both the arbitration agreement and the arbitral award.
ARBITRATION ACT, 1914
This was the first Arbitration statute established in Nigeria, based on the English Arbitration Act, 1889 and was applied to the whole country which was then governed as a unitary state.
The provisions of the Act included the number and mode of appointment of arbitrators, the making of awards, the umpire, and examination of witnesses and others on oath and the costs of the reference.
ARBITRATION AND CONCILIATION DECREE, 1988
This Decree was made to provide for both domestic and international arbitration. It also provides for conciliation.
The Decree incorporates the New York Convention, 1958 which is set out as the Second Schedule to the Decree.
The Decree is divided into four (4) parts and three (3) schedules.
It is now known as Arbitration and Conciliation Act, 1988 Cap. A18 LFN 2004.
The Arbitration and Conciliation Act, 1988 is currently the applicable law on arbitration and conciliation throughout the Federation of Nigeria. It provides a unified legal framework for the fair and efficient settlement of domestic and international commercial disputes in Nigeria. Moreover, it supersedes any other law on arbitration in Nigeria. Where there is thus any inconsistency with other law, that other law (State law) is void and of no effect to the extent of the inconsistency – C.G de Geophysique v. Etuk (2004) 1 NWLR (Pt. 853) 20 CA; sections 4(5) and 315(3) of the 1999 Constitution.
ARBITRATION PROCEEDINGS
Parties to a dispute may decide on their own to settle by arbitration. And, the law requires them to obey the rules, proceedings and awards of the arbitration panel for better or worse – African Re Corp. v. AIM Consultancy Ltd. (2004) 11 NWLR (Pt. 884) 223 CA; C.G de Geophysique v. Etuk (supra).
An arbitration proceeding is provided for under section 15 of the Arbitration and Conciliation Act.
Section 15 provides thus –
The arbitral proceedings shall be in accordance with the procedure contained in the Arbitration Rules set out in the First Schedule to this Act.
Where the rules referred to in subsection (1) of this section contain no provision in respect of any matter related to or connected with a particular arbitral proceedings, the arbitral tribunal may, subject to this Act, conduct the arbitral proceedings in such a manner as it considers appropriate so as to ensure fair hearing.
The power conferred on the arbitral tribunal under subsection (2) of this section shall include the power to determine the admissibility, relevance, materiality and weight of any evidence placed before it.
In arbitral proceedings, where the arbitral tribunal determines itself the procedural rules, it may either derive them from a national law or draw up its own rules.
It is necessary for the arbitral tribunal to observe the mandatory rules of national law applicable to international arbitration in the country where the arbitration takes place to ensure that the award to be made by it will be enforceable at law.
Arbitration being a matter of procedure as opposed to a matter of substantive law is governed by the lex fori (the law of the country in which an action is brought) – James Miller & Partners Ltd. v. Whitworth Street Estates (Manchester) Ltd (1970) A. C 583 at 606.
CONDUCT OF ARBITRAL PROCEEDINGS
By section 14 of the Act, parties shall be entitled to equal treatment and they should be given opportunity to present their cases.
The place of arbitration shall be determined by the tribunal with due regards to the matter and the convenience of the parties – section 16 of the Act.
The tribunal also has power to appoint and expect to report on the matter before it while it could also order the attendance of a witness – section 22 and 23 of the Act.
COMMENCEMENT OF ARBITRAL PROCEEDINGS
Under section 17 of the Arbitration Act, provides as follows –
“Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute shall commence on the date the request to refer the dispute to arbitration is received by the other party”.
The commencement of arbitration is very important in determining the limitation of time as to the right to bring an action or claim. The right to action or claim may be lost if the time limit is not observed.
ARBITRATION PROCEDURE
The arbitrator commences business immediately.
Procedural matters are outlined and agreed upon.
Claims are made and filed while the Respondent also gives his defence which may or may not be accompanied by a counter-claim.
Relevant documents may also be tendered and exchanged.
The procedure is such that no party is left or caught unawares. In most cases, the court appoints arbitrators for the disputing parties.
ESSENTIALS OF ARBITRATION
For a dispute to qualify for adjudication by a third party through arbitration procedure, it must possess the following characteristics –
There must be a dispute between the parties concerning some agreement over a point of law or fact.
The dispute or difference must be justifiable.
The parties must voluntarily agree to resolve the dispute through third party mediation.
The agreement to submit to arbitration must not be illegal.
The parties must have inserted a clause in the said agreement mandating them to submit to arbitration in the present or in the future.
There must be a formal reference of the dispute to the decision of the third party.
That third party must expressly or impliedly be required to decide according to law.
It must be a term of that contract that the award shall be binding and that the parties must act in good faith.
THE AWARD
Decision in respect of an award by an arbitral tribunal shall be by a majority – section 14 of the Act, in the event of a mutual settlement before the arbitral proceeding is concluded, the arbitral proceedings shall be terminated.
An award shall state the reasons, the date and the place it was made. It must also be signed by the majority of arbitrators. However, a party who is aggrieved by an arbitral award may, within three (3) months, apply for its setting aside – section 29 of the Act, as was considered by the Supreme Court in Taylor Woodrow (Nig.) v. S.E. GMBH (1993) 4 NWLR (Pt. 286) 127 SC. An arbitral award shall be recognised as binding and shall, upon application in writing to the court, be enforced by the court.
On the other hand, any aggrieved party may request the court to refuse recognition or enforcement of the award on ground of misconduct – Taylor Woodrow (Nig.) v. S.E. GMBH (supra); Home Developments Ltd. v. Scancilar Contracting Co. Ltd. (1994) 9 SCNJ 87.
ENFORCEMENT OF AN AWARD
An award, though like a judgment in that they are both adjudicatory cannot be executed like the judgment of a court. This does not mean that parties cannot obey the directions in an award, because parties against whom an award is made may voluntarily obey the order and comply, since the award is binding as between the parties and their privies. Thus, it is the final decision of the Arbitrator, and both the claimant and defendant shall have copies of the Award.
Every arbitral award duly made is to be recognised as binding and is expected to be complied with. It is when there is a default that the question of enforcement by the winning party arises.
Section 31 of the Act provides that –
An arbitral award shall be recognised as binding and subject to this section and section 32, shall, upon application in writing to the court be enforced by the court.
The party relying on an award or applying for its enforcement shall supply –
The duly authenticated original award or a duly certified copy thereof;
The original arbitration agreement or a duly certified copy thereof;
An award may by leave of the court or a judge be enforced in the same manner as a judgment or order to the same effect.
A party that is not satisfied with the award may go to court for redress. The court may order the award to be remitted back to the Arbitrator or may decide to set it aside – Governor of Niger State v. Albishir (1985) 3 NWLR (Pt. 29) 404 C. A.
Usually, it is the losing party that goes to court to seek a setting aside order. The winning party may also approach the court for an order to enforce the award – Commerce Assurance Ltd. v. Alli (1986) 3 NWLR (Pt. 29) 404 C. A.
Once an order is made for the enforcement of an award, the successful party may levy execution under the Sheriff and Civil Process Law where the award was made in a foreign country against any organisation or company in Nigeria, it must first be registered under the Reciprocal Enforcement of judgment Act, 1960 if the Award was from a United Kingdom. Thereafter, application shall be made to the court for enforcement by way of originating summons.
However, by virtue of the New York Convention, 1958, an International treaty to which Nigeria is a subscriber, it could be reasonably inferred that judgments of other countries, apart from the United Kingdom can also be registered and enforced reciprocally between Nigeria and the other country or countries.
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
Enforcement of foreign arbitral awards is easier than enforcing judgments. The main reason is that there are a number of rules and international conventions which facilitate the enforcement of arbitral awards. This includes the United Nations Convention on the Recognition and Enforcement of Arbitral Awards (New York Convention), 1958 which supersedes the Geneva Protocol on Arbitration Clauses, 1923 and the Geneva Convention on Execution of Foreign Arbitral Awards, 1927.
The New York Convention is universally recognised as it makes it mandatory for signatories to recognise and enforce all final arbitral awards while allowing countries only limited grounds on which it can deny enforcement.
These are the basic attributes of the New York Convention and it affords the enforcement of foreign awards on the basis of reciprocity among countries that are signatories to the Convention.
There is also an age long tradition of parties voluntarily complying with foreign arbitral awards possibly borne out of the reality that the act of arbitration itself is a consensual process.
OBJECTION (CHALLENGE) TO ENFORCEMENT OF AN AWARD
Section 32 of the Act provides that –
“Any of the parties to an arbitration agreement may request the court to refuse recognition or enforcement of the award.”
A person who wishes to object or challenge the enforcement of the award can apply to the court at any time after the award is made, especially as the application and order for enforcement may be made ex parte.
GROUNDS ON WHICH A COURT MAY DECIDE WHETHER OR NOT TO REFUSE RECOGNITION OR ENFORCEMENT OF AN AWARD
The grounds are –
That a party to the arbitration agreement was under some incapacity; or
That the arbitration agreement is not valid under the law which governs the arbitration; or
That the party objecting was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or otherwise was not able to present his case; or
That the award deals with a dispute not contemplated by or not falling within the terms of the submission or arbitration; or
That the award contains decisions on matters which are beyond the scope of the submission to arbitration, subject to the possibility of separating those submitted from those not submitted; or
That the composition of the arbitral tribunal or the arbitral procedure is not in accordance with the agreement of the parties; or
Where there is no agreement between the parties, that the composition of the tribunal or the arbitral procedure was not in accordance with the applicable law; or
That the award has not yet become binding on the parties or has been set aside or suspended by a court; or
That the subject matter of the dispute is not capable of settlement by arbitration under Nigerian law; or
That the recognition or enforcement of the award is against public policy of Nigeria – section 52 of the Act.
CONTENTS OF THE ARBITRATION CLAUSE
The contents of an arbitration clause will depend on whether the agreement is for ad hoc arbitration or an institutional arbitration.
Where it is for ad hoc arbitration, all matters of importance and of interest must be specifically provided for unless some rules or statutes are incorporated by reference.
Where it is for an institutional arbitration, it is sufficient to adopt the procedure and rules of a specified arbitration institution.
The following are some of the matters which need to be provided for as contents of the arbitration clause –
The reference.
The parties.
The arbitrators.
The place of arbitration.
The applicable law.
The arbitration procedure.
The language of the arbitration.
Other matters.
AN ARBITRATION CLAUSE
Whereas disputes have arisen between the parties to an agreement for the construction of.................. dated the .................. day of .............. 20.... and the parties have agreed to refer these disputes to be finally settled by arbitration.
NOW IT IS AGREED AS FOLLOWS:
The arbitration shall be conducted by ....................................... (name of the arbitrator) or an arbitrator selected by the parties, or in default of agreement by ................................ or a tribunal of three arbitrators chosen by each party, the third to be appointed by agreement between the parties (or the appointed arbitrators) or in default of agreement by the Chairman or President of ................. (name of the person).
The arbitration shall determine the following issues set out ................ (name the issues).
The arbitration shall take place in Abuja, Nigeria and shall be conducted in English language.
The Arbitration Rules in the Arbitration and Conciliation Act, 1988 shall apply.
The Award shall be delivered within six (6) months of the appointment of the sole arbitrator (or the third arbitrator, as the case may be) unless the parties extend the time.
Dated the ........................... day of .......................... 20...........
MEDIATION
MEANING AND PRINCIPLES
Mediation as a form of Alternative Dispute Resolution (ADR) aims to determine the conditions of any settlements reached rather than accepting something imposed by a third party. Thus, Mediation aims at working with the users in conflict to incorporate the information or viewpoints of both, while ensuring that the result conforms to all applicable policies. At the same time, it endeavours to produce sufficient peace between the parties to allow amicable discussion and prevent the need for future dispute resolution.
Mediation is also an activity in which a neutral third party, the mediator, guides and regulates structured discussion to facilitate reaching consensus on a disputed issue.
Mediation is intended to achieve a way for people to keep working happily together and build better articles, while growing from the mutual exchange. It is also an arrangement for parties who, although genuinely interested in resolving their disputes, cannot find common agreement.
Mediation could also be referred to as an informal process, aimed at enabling the parties to a dispute to discuss their differences in total privacy, with the assistance of a neutral third party (the mediator), whose task it is first to help each party to understand the other party’s view of the matters in dispute and then to help both parties to make a dispassionate objective appraisal of the total situation.
As part of the process, the mediator will talk confidentially with each party. The object of the process is to help the parties to negotiate a settlement. The discussions are wholly without prejudice; that is, nothing that is said by either party can be used or referred to in any proceedings in a Court. The mediator arranges and chairs the discussions and acts as an intermediary to facilitate the progress towards settlement.
MEDIATORS
A mediator is a person who works with both sides in a dispute in an attempt to reach an agreement. Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial.
ROLES AND FUNCTIONS OF MEDIATORS
Mediators can contribute to the settlement of disputes by creating favourable conditions for dealing with them. This can occur through:
Providing an appropriate physical environment – This is through selection of neutral venues, appropriate seating arrangements, visual aids and security.
Providing a procedural framework – This is through conduct of the various stages of mediation process. As the chair of the proceedings, they can establish basic ground rules, provide order, sequence and continuity. The mediators opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based.
Improving the emotional environment – This is a more subtle function and varies among mediations and mediators. They can improve the emotional environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.
CHARACTERISTICS OF MEDIATION
The principal characteristics of mediation are –
Mediation is a non-binding procedure controlled by the parties – A party to mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator's role is, rather, to assist the parties in reaching a settlement of the dispute. Indeed, even when the parties have agreed to submit a dispute to mediation, they are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests. However, parties usually participate actively in mediations once they begin. If they decide to proceed with the mediation, the parties decide on how it should be conducted with the mediator.
Mediation is a confidential procedure – In mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot be provided to anyone - including in subsequent court litigation or arbitration - outside the context of the mediation. Mediation's confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.
Mediation is an interest-based procedure – In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In mediation, the parties can also be guided by their business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their past conduct. When the parties refer to their interests and engage in dialogue, mediation often results in a settlement that creates more value than would have been created if the underlying dispute had not occurred.
Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Indeed, one could say that, even when a settlement is not achieved, mediation never fails, as it causes the parties to define the facts and issues of the dispute, thus in any event preparing the ground for subsequent arbitration or court proceedings.
DISTINGUISHING MEDIATION FROM OTHER FORMS OF DISPUTE SETTLEMENT
ARBITRATION AND MEDIATION
The role of a mediator is unlike the role of an arbitrator; mediators are facilitators of voluntary discussion, while arbitrators hear evidence and issue binding rulings, including the ability to issue sanctions against users
Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly bindingarbitration, in a process called 'mediation/arbitration'. In this process, if parties are unable to reach resolution through mediation, they can shift to an arbitrator, which entails shifting the mediation process into an arbitral one, seeking additional evidence as needed (particularly from witnesses, if any, since witnesses are normally not called upon by a mediator), and finally rendering an arbitral decision.
Mediation/arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator's unique role as someone who wields coercive power over neither the parties nor the outcome. If parties in mediation are aware the mediator might later need to act in the role of judge, the process could be dramatically distorted. However, mediation-arbitration often involves using different individuals in the role of mediator and – if needed later – arbitrator, but this is not always the case.
MEDIATION AND LITIGATION
Mediation offers a process by which two parties work towards an agreement with the aid of a neutral third party. Litigation, however, is a process in which the courts impose binding decisions on the disputing parties in a determinative process operating at the level of legal rights and obligations.
These two processes sound completely different, but both are a form of dispute resolution. Litigation is conventionally used and conventionally accepted, but Mediation is slowly becoming more recognized as a successful tool in dispute resolution.
In saying this, there are distinct differences between the two processes. Mediation claims to resolve many of the problems associated with litigation, such as the high costs involved, the formality of the court system and the complexity of the court process. Mediation, unlike litigation does not create binding agreements unless the parties consent to it, and the Mediator has no say in the outcome.
MEDIATION AND CONCILIATION
"Conciliation" sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes. Neither mediation nor conciliation process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.
One significant difference between conciliation and mediation lies in the fact that conciliators possess expertknowledgeof the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect. On the other hand, mediation works purely facilitative: the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.
Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation has somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side's argument should they go to court; whereas facilitative mediators and transformative mediators do not do this.
Both mediation and conciliation serve to identify the disputed issues and to generate options that help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible processes; and any settlement reached should have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the party with the strongest legal argument.
HOW DOES MEDIATION WORK
This has to do with the steps in mediation (mediation process). There are six (6) steps to a formal mediation –
Introductory remarks;
Statement of the problem by the parties;
Information gathering time;
Identification of the problems;
Bargaining and generating options; and
Reaching an agreement.
INTRODUCTORY REMARKS
The mediator will wait until both parties are present and then make introductions. The physical setting will be controlled so that no party feels threatened. Most mediators will ask that if children are present, they wait outside. The mediator will then give an opening statement. This outlines the role of the participants and demonstrates the mediator’s neutrality. Some mediators will make comments about what they see as the issue and confirm the case data if briefs have been pre-submitted. Next, the mediator will define protocol and set the time frame for the process. There will be a review of the mediation guidelines and the mediator will briefly recap what it is that he has heard as the issues.
The opening statement during the introductory remarks will set out the ground rules for the mediation. These ground rules are what help the mediation move along smoothly. Parties should not interrupt each other; the mediator will give each party the opportunity to fully share their side of the story.
STATEMENT OF THE PROBLEM BY THE PARTIES
After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most often, the person who requested the mediation session will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party. If there are lawyers present who make the initial statement, the mediator will then ask the client to also make a statement. The rationale behind the statement of the problem is not necessarily a search for the truth; it is just a way to help solve the problem.
INFORMATION GATHERING
The mediator will ask the parties open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties, and will summarize often. This helps the mediator build rapport between the parties, especially when a facilitative style is used.
PROBLEM IDENTIFICATION
This might also be part of other segments. The mediator tries to find common goals between the parties. The mediator will figure out which issues are going to be able to settle or those that will settle first.
BARGAINING AND GENERATING OPTIONS / REACHING AN AGREEMENT
Methods for developing options may include group processes, discussion groups or sub-groups, developing hypothetical plausible scenarios, or a mediator’s proposal where the mediator puts a proposal on the table and the parties take turns modifying it. However, the most commonly used method is the caucus (a method used between people to promote a particular policy or interests).
Once the participants are committed to achieving a negotiated settlement, the mediator will propose a brainstorming session to explore potential solutions. This can lead to a final agreement, which diffuses the conflict and provides a new basis for future relations.
The mediator may decide to hold private sessions with both parties in order to move the negotiations along. This caucus session will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions.
KEY QUALITIES OF THE MEDIATION PROCESS
Voluntary – A party can leave at any time for any reason, or no reason.
Collaborative – As no participant in mediation can impose anything on anyone, everyone is motivated to work together to solve the issues and reach best agreements.
Controlled - Each participant has complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on a party.
Confidential – Mediation is generally confidential, as you desire and agree, be that by statute, contract, and rules of evidence and/or privilege. Mediation discussions and all materials developed for mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. A mediator is obligated to describe the extent of mediation confidentiality and exceptions to that confidentiality. The extent of confidentiality for any "caucus meetings" (meetings between the mediator and individual parties) should also be defined.
Informed – The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutually acceptable experts can be retained. Expert advice is never determinative in mediation. The participants always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought, is ultimately, a decision of each mediation participant.
Impartial, Neutral, Balanced and Safe – The mediator has an equal and balanced responsibility to assist each mediating party and cannot favour the interests of any one party over another, nor should the mediator favour a particular result in the mediation. A mediator is ethically obligated to acknowledge any substantive bias on issues in discussion. The mediator's role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.
Self-Responsible and Satisfying – Based upon having actively participated in voluntarily resolving issues, participant satisfaction and the likelihood of compliance are found to be elevated through mediation compared to court options.
ETHICAL STANDARDS REQUIRED OF MEDIATORS
Knowledge – sufficient proficiency on the subject matter of dispute.
Honourable – fairness, candour and decorum; to earn respect and confidence of the parties.
Good listener and high analytical skills.
Impartial facilitator – moves the parties towards amicable resolution of the dispute.
Facilitates resolution of the dispute timely.
Ensures confidentiality.
Do not propose or impose decision on the parties but adopt techniques to help the parties arrive at their mutually agreeable solutions.
Ensures resolution by parties is reduced into writing with all terms and points clearly spelt out.
Displays leadership skills and control the proceedings.
A mediator is not bound to take notes because he is not expected to decide for the parties the outcome of the mediation.
NEGOTIATION
An indispensable step in any Alternative Dispute Resolution (ADR) process is negotiation. It is a fundamental key to all consensual Alternative Dispute Resolution (ADR) activities and, in fact, the most satisfactorily method of settling disputes.
The ability to negotiate is inherent, that is, it is an art which is learnt from the earliest stage. Usually, negotiation consists of a quid pro quo of a sort, which is, giving up something in order to get something in return.
It involves discussions or dealings about a matter, with a view to reconciling differences and establishing areas of agreement, settlement or compromise that would be mutually beneficial to the parties or that would satisfy the aspiration of each party to the negotiation. Compromise here implies flexibility on both sides and flexibility derives from a genuine desire on the part of the parties to reach an agreement.
Each adult person would at one time or the other have consciously negotiated one agreement or the other, personal and financial and we might all have developed our own individual approach in trying to persuade others to give what we want, which is what negotiation is all about.
NEGOTIATION APPROACHES
There are various approaches to negotiation; its procedure and technique vary with each negotiation, depending on the nature of the issues being negotiated, the parties to the negotiation together with their skill, knowledge and experience.
The nature and personality of the negotiator is at once also relevant. A negotiator may be a tough and aggressive hard bargainer who may by nature is always reluctant to concede; he may be a person who would always want to heckle or threaten his opponent, that is, negotiating by browbeating; or he may be the opposite, that is, one who would implicitly adopt a pleading manner or cajole his opponent to submission.
There are no formal institutions as such where negotiation skills are learnt other than in continuing education forums like seminars. However, negotiating capacity and ability is enhanced by a thorough knowledge of its theories and intricacies.
PROCEDURE FOR NEGOTIATION
There are three (3) distinct steps in every negotiation. These are –
Step 1 – This involves the definition of the problem, the clarification of objectives, finding out exactly what the other side wants, that is, trying to assess the underlying needs or preferences of the other party to enable you develop a strategy to meet.
Step 2 – It is necessary at this step to have a brief but working knowledge of the habits, antecedents and inclinations of the other party to the negotiation. This information will help you tailor your strategy to meet his need.
Step 3 –This is the agreement stage. It is where compromises are made and a mutual and satisfactory conclusion is reached. Surprisingly, in civil law systems, unlike in common law jurisdictions, there is an overriding principle of good faith in contract negotiation and performance.
IMPORTANCE OF NEGOTIATION
Negotiation requires participants to identify issues about which they differ, educate each other about their needs and interests, generate possible settlement options and bargain over the terms of the final agreement. Successful negotiations generally result in some kind of exchange or promise being made by the negotiators to each other. The exchange may be tangible (such as money, a commitment of time or a particular behaviour) or intangible (such as an agreement to change an attitude or expectation, or make an apology).
TYPES OF NEGOTIATIONS
Negotiation may involve settlement of disputes, or domestic transactions such as banking, commercial or property transaction. It may also involve international transaction such as crude oil and agricultural exports, imports of industrial goods and technologies.
Whatever the type of negotiation, a legal practitioner must prepare for negotiation. Negotiation must not be seen as an easy option to litigation. The practitioner must prepare for negotiation in the same way he or she must prepare for litigation. To prepare for negotiation the facts of the matter must be ascertained and the objective which the client intends to achieve must be ascertained. The law applicable to the matter must also be a negotiated agreement.
The Best Alternative to Negotiated Agreement (BATNA) and Worst Alternative to Negotiated Agreement (WATNA) on the matter must be considered before deciding whether the matter is best resolved by negotiation or other means.
NEGOTIATING STRATEGIES STYLES AND TACTICS
Negotiating strategies are the methods which a negotiator uses to achieve his or her real objective in order to reach an agreement on the matter under negotiation. There are two types of negotiating strategies:-
(a) Competitive or Positional (otherwise known as win/lose)
(b) Co-operative or Problem-solving (otherwise known as win/win)
Negotiators also have distinctive negotiating styles. Each negotiator's style is influenced by his individual personality, the strategy he intends to adopt and his objective. Negotiating styles have been classified into three: Soft, Hard and Firm.
Negotiators also use tactics, to achieve their objective. Many tactics are used by negotiators and there are as many tactics as there are negotiators. The commonly used tactics includes – control of agenda; contextual manipulation; overwhelming numerical strength; puffs; threats; take it or leave it; piecemeal; package; nibble; limited authority; lack of authority; behavioural; and psychological tactics.
STAGES OF NEGOTIATION
Negotiation is a process that goes through several stages. Writers have identified different stages through which a negotiation must pass. The stages of negotiation identified vary from three to eight. The number of stages through which a negotiation is processed is divided, . though important, is a matter of individual classification preference. More important is what takes place during the negotiation process.
As negotiation is a process, it passes from one stage to another, and may or may not lead to an agreement. In analyzing the negotiation process, four stages are identified:
(a) Opening;
(b) Bargaining;
(c) Closing; and
(d) Execution.
PREPARING AND PLANNING FOR NEGOTIATION
The following should be put into consideration when planning and preparing for negotiation –
It is advisable to first and foremost, understand the facts and issues involved.
Then you are to decide what is least and the most you can expect during negotiation.
You should know what is not negotiable in order to avoid irrelevant matters.
Know what the other side cares about.
Finally, know what is in both interest so that both parties will be satisfied (or almost satisfied) at the end.
CONDUCTING NEGOTIATION
This has to do with the following –
Try to build a good relationship with the other party.
Be friendly and cordial throughout.
Always speak about what you would like (e.g I think, I feel, I suggest, etc).
Find out what the other party will like.
Brainstorm on solutions or options to solve the problem.
Do not make unfair or unrealistic demands.
Do not become abusive, over emotional or threatening.
Try and offer to give something away in exchange for something else from the other party.
Arbitration is a process of dispute resolution in which a neutral third party called – arbitrator, renders a decision after hearing at which both parties have an opportunity to be heard.
In Kano State Urban Dev. Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 SC, an arbitration was defined as the reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner by a person or persons other than a court of competent jurisdiction.
Arbitration may be voluntary or compulsory. In a voluntary arbitration, the disputing parties select the arbitrator who has the power to make binding judgment. Thus, it is by mutual and free consent of the parties. Whilst compulsory arbitration is that which occurs when the consent of one of the parties is enforced by statutory provisions.
An arbitrator is a neutral person either chosen by the parties to a dispute or appointed by a court, to hear the parties’ claims and render a decision.
PRINCIPLES AND LAWS/RULES GOVERNING ARBITRATION AND CONCILIATION IN NIGERIA
There are two main sources of Nigerian Arbitration Law namely –
The Common law and the doctrines of equity;
Statutes.
COMMON LAW AND DOCTRINES OF EQUITY
The common law means the case law of Nigeria and such principles of English Common Law and doctrines of equity as are still applicable in Nigeria. As a general rule, the common law of England and its doctrines of equity apply in Nigeria except where they have been modified or rejected in Nigeria either by statute or by courts.
It should however be noted that Nigerian courts still rely very heavily on English decisions as persuasive authorities in their own decisions.
STATUTES
The Nigerian Arbitration law is largely derived from statutes both foreign and local. The foreign ones are –
The UNCITRAL Model Law;
The UNCITRAL Arbitration Rules; and
The New York Convention.
While the local statutes are –
The Arbitration ACT 1914; and
The Arbitration and Conciliation Decree 1988.
THE UNCITRAL MODEL LAW
UNCITRAL means the United Nations Commission on International Trade Law.
This was approved because of the need to liberalize international commercial arbitration by limiting the role of national courts and allowing the parties freedom to choose how their disputes should be determined.
It was also to provide for a framework for the conduct of international commercial arbitrations, so that in the event of the parties being unable to agree on procedural matters, the arbitration would nevertheless be capable of being completed.
The law has the advantage that it is not a treaty but a model law which may be adopted with necessary amendments to suit each jurisdiction. Furthermore, it is limited to disputes relating to international contracts leaving each nation which adopts it still free to make provisions for purely domestic arbitration.
Lastly, it was made to aid the enforceability of awards and to clarify certain controversial practical issues.
THE UNCITRAL ARBITRATION RULES
The major arbitral institutions have their own rules which are up-to-date for resolution of disputes contained in the UNCITRAL Arbitration Rules.
The UNCITRAL Arbitration Rules are the same with the rules that are contained in the First Schedule to the Arbitration and Conciliation Act, which are for both domestic and international arbitrations.
NEW YORK CONVENTION
This is regarded as the most important international treaty relating to international commercial arbitration. It is an improvement of the Geneva Convention of 1927 because it provides for a much more simpler and effective method of obtaining recognition and enforcement of foreign arbitral awards.
The convention has now been made expressly applicable to Nigeria by section 54 of the Arbitration and Conciliation Decree, 1988.
The convention provides for the recognition of both the arbitration agreement and the arbitral award.
ARBITRATION ACT, 1914
This was the first Arbitration statute established in Nigeria, based on the English Arbitration Act, 1889 and was applied to the whole country which was then governed as a unitary state.
The provisions of the Act included the number and mode of appointment of arbitrators, the making of awards, the umpire, and examination of witnesses and others on oath and the costs of the reference.
ARBITRATION AND CONCILIATION DECREE, 1988
This Decree was made to provide for both domestic and international arbitration. It also provides for conciliation.
The Decree incorporates the New York Convention, 1958 which is set out as the Second Schedule to the Decree.
The Decree is divided into four (4) parts and three (3) schedules.
It is now known as Arbitration and Conciliation Act, 1988 Cap. A18 LFN 2004.
The Arbitration and Conciliation Act, 1988 is currently the applicable law on arbitration and conciliation throughout the Federation of Nigeria. It provides a unified legal framework for the fair and efficient settlement of domestic and international commercial disputes in Nigeria. Moreover, it supersedes any other law on arbitration in Nigeria. Where there is thus any inconsistency with other law, that other law (State law) is void and of no effect to the extent of the inconsistency – C.G de Geophysique v. Etuk (2004) 1 NWLR (Pt. 853) 20 CA; sections 4(5) and 315(3) of the 1999 Constitution.
ARBITRATION PROCEEDINGS
Parties to a dispute may decide on their own to settle by arbitration. And, the law requires them to obey the rules, proceedings and awards of the arbitration panel for better or worse – African Re Corp. v. AIM Consultancy Ltd. (2004) 11 NWLR (Pt. 884) 223 CA; C.G de Geophysique v. Etuk (supra).
An arbitration proceeding is provided for under section 15 of the Arbitration and Conciliation Act.
Section 15 provides thus –
The arbitral proceedings shall be in accordance with the procedure contained in the Arbitration Rules set out in the First Schedule to this Act.
Where the rules referred to in subsection (1) of this section contain no provision in respect of any matter related to or connected with a particular arbitral proceedings, the arbitral tribunal may, subject to this Act, conduct the arbitral proceedings in such a manner as it considers appropriate so as to ensure fair hearing.
The power conferred on the arbitral tribunal under subsection (2) of this section shall include the power to determine the admissibility, relevance, materiality and weight of any evidence placed before it.
In arbitral proceedings, where the arbitral tribunal determines itself the procedural rules, it may either derive them from a national law or draw up its own rules.
It is necessary for the arbitral tribunal to observe the mandatory rules of national law applicable to international arbitration in the country where the arbitration takes place to ensure that the award to be made by it will be enforceable at law.
Arbitration being a matter of procedure as opposed to a matter of substantive law is governed by the lex fori (the law of the country in which an action is brought) – James Miller & Partners Ltd. v. Whitworth Street Estates (Manchester) Ltd (1970) A. C 583 at 606.
CONDUCT OF ARBITRAL PROCEEDINGS
By section 14 of the Act, parties shall be entitled to equal treatment and they should be given opportunity to present their cases.
The place of arbitration shall be determined by the tribunal with due regards to the matter and the convenience of the parties – section 16 of the Act.
The tribunal also has power to appoint and expect to report on the matter before it while it could also order the attendance of a witness – section 22 and 23 of the Act.
COMMENCEMENT OF ARBITRAL PROCEEDINGS
Under section 17 of the Arbitration Act, provides as follows –
“Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute shall commence on the date the request to refer the dispute to arbitration is received by the other party”.
The commencement of arbitration is very important in determining the limitation of time as to the right to bring an action or claim. The right to action or claim may be lost if the time limit is not observed.
ARBITRATION PROCEDURE
The arbitrator commences business immediately.
Procedural matters are outlined and agreed upon.
Claims are made and filed while the Respondent also gives his defence which may or may not be accompanied by a counter-claim.
Relevant documents may also be tendered and exchanged.
The procedure is such that no party is left or caught unawares. In most cases, the court appoints arbitrators for the disputing parties.
ESSENTIALS OF ARBITRATION
For a dispute to qualify for adjudication by a third party through arbitration procedure, it must possess the following characteristics –
There must be a dispute between the parties concerning some agreement over a point of law or fact.
The dispute or difference must be justifiable.
The parties must voluntarily agree to resolve the dispute through third party mediation.
The agreement to submit to arbitration must not be illegal.
The parties must have inserted a clause in the said agreement mandating them to submit to arbitration in the present or in the future.
There must be a formal reference of the dispute to the decision of the third party.
That third party must expressly or impliedly be required to decide according to law.
It must be a term of that contract that the award shall be binding and that the parties must act in good faith.
THE AWARD
Decision in respect of an award by an arbitral tribunal shall be by a majority – section 14 of the Act, in the event of a mutual settlement before the arbitral proceeding is concluded, the arbitral proceedings shall be terminated.
An award shall state the reasons, the date and the place it was made. It must also be signed by the majority of arbitrators. However, a party who is aggrieved by an arbitral award may, within three (3) months, apply for its setting aside – section 29 of the Act, as was considered by the Supreme Court in Taylor Woodrow (Nig.) v. S.E. GMBH (1993) 4 NWLR (Pt. 286) 127 SC. An arbitral award shall be recognised as binding and shall, upon application in writing to the court, be enforced by the court.
On the other hand, any aggrieved party may request the court to refuse recognition or enforcement of the award on ground of misconduct – Taylor Woodrow (Nig.) v. S.E. GMBH (supra); Home Developments Ltd. v. Scancilar Contracting Co. Ltd. (1994) 9 SCNJ 87.
ENFORCEMENT OF AN AWARD
An award, though like a judgment in that they are both adjudicatory cannot be executed like the judgment of a court. This does not mean that parties cannot obey the directions in an award, because parties against whom an award is made may voluntarily obey the order and comply, since the award is binding as between the parties and their privies. Thus, it is the final decision of the Arbitrator, and both the claimant and defendant shall have copies of the Award.
Every arbitral award duly made is to be recognised as binding and is expected to be complied with. It is when there is a default that the question of enforcement by the winning party arises.
Section 31 of the Act provides that –
An arbitral award shall be recognised as binding and subject to this section and section 32, shall, upon application in writing to the court be enforced by the court.
The party relying on an award or applying for its enforcement shall supply –
The duly authenticated original award or a duly certified copy thereof;
The original arbitration agreement or a duly certified copy thereof;
An award may by leave of the court or a judge be enforced in the same manner as a judgment or order to the same effect.
A party that is not satisfied with the award may go to court for redress. The court may order the award to be remitted back to the Arbitrator or may decide to set it aside – Governor of Niger State v. Albishir (1985) 3 NWLR (Pt. 29) 404 C. A.
Usually, it is the losing party that goes to court to seek a setting aside order. The winning party may also approach the court for an order to enforce the award – Commerce Assurance Ltd. v. Alli (1986) 3 NWLR (Pt. 29) 404 C. A.
Once an order is made for the enforcement of an award, the successful party may levy execution under the Sheriff and Civil Process Law where the award was made in a foreign country against any organisation or company in Nigeria, it must first be registered under the Reciprocal Enforcement of judgment Act, 1960 if the Award was from a United Kingdom. Thereafter, application shall be made to the court for enforcement by way of originating summons.
However, by virtue of the New York Convention, 1958, an International treaty to which Nigeria is a subscriber, it could be reasonably inferred that judgments of other countries, apart from the United Kingdom can also be registered and enforced reciprocally between Nigeria and the other country or countries.
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
Enforcement of foreign arbitral awards is easier than enforcing judgments. The main reason is that there are a number of rules and international conventions which facilitate the enforcement of arbitral awards. This includes the United Nations Convention on the Recognition and Enforcement of Arbitral Awards (New York Convention), 1958 which supersedes the Geneva Protocol on Arbitration Clauses, 1923 and the Geneva Convention on Execution of Foreign Arbitral Awards, 1927.
The New York Convention is universally recognised as it makes it mandatory for signatories to recognise and enforce all final arbitral awards while allowing countries only limited grounds on which it can deny enforcement.
These are the basic attributes of the New York Convention and it affords the enforcement of foreign awards on the basis of reciprocity among countries that are signatories to the Convention.
There is also an age long tradition of parties voluntarily complying with foreign arbitral awards possibly borne out of the reality that the act of arbitration itself is a consensual process.
OBJECTION (CHALLENGE) TO ENFORCEMENT OF AN AWARD
Section 32 of the Act provides that –
“Any of the parties to an arbitration agreement may request the court to refuse recognition or enforcement of the award.”
A person who wishes to object or challenge the enforcement of the award can apply to the court at any time after the award is made, especially as the application and order for enforcement may be made ex parte.
GROUNDS ON WHICH A COURT MAY DECIDE WHETHER OR NOT TO REFUSE RECOGNITION OR ENFORCEMENT OF AN AWARD
The grounds are –
That a party to the arbitration agreement was under some incapacity; or
That the arbitration agreement is not valid under the law which governs the arbitration; or
That the party objecting was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or otherwise was not able to present his case; or
That the award deals with a dispute not contemplated by or not falling within the terms of the submission or arbitration; or
That the award contains decisions on matters which are beyond the scope of the submission to arbitration, subject to the possibility of separating those submitted from those not submitted; or
That the composition of the arbitral tribunal or the arbitral procedure is not in accordance with the agreement of the parties; or
Where there is no agreement between the parties, that the composition of the tribunal or the arbitral procedure was not in accordance with the applicable law; or
That the award has not yet become binding on the parties or has been set aside or suspended by a court; or
That the subject matter of the dispute is not capable of settlement by arbitration under Nigerian law; or
That the recognition or enforcement of the award is against public policy of Nigeria – section 52 of the Act.
CONTENTS OF THE ARBITRATION CLAUSE
The contents of an arbitration clause will depend on whether the agreement is for ad hoc arbitration or an institutional arbitration.
Where it is for ad hoc arbitration, all matters of importance and of interest must be specifically provided for unless some rules or statutes are incorporated by reference.
Where it is for an institutional arbitration, it is sufficient to adopt the procedure and rules of a specified arbitration institution.
The following are some of the matters which need to be provided for as contents of the arbitration clause –
The reference.
The parties.
The arbitrators.
The place of arbitration.
The applicable law.
The arbitration procedure.
The language of the arbitration.
Other matters.
AN ARBITRATION CLAUSE
Whereas disputes have arisen between the parties to an agreement for the construction of.................. dated the .................. day of .............. 20.... and the parties have agreed to refer these disputes to be finally settled by arbitration.
NOW IT IS AGREED AS FOLLOWS:
The arbitration shall be conducted by ....................................... (name of the arbitrator) or an arbitrator selected by the parties, or in default of agreement by ................................ or a tribunal of three arbitrators chosen by each party, the third to be appointed by agreement between the parties (or the appointed arbitrators) or in default of agreement by the Chairman or President of ................. (name of the person).
The arbitration shall determine the following issues set out ................ (name the issues).
The arbitration shall take place in Abuja, Nigeria and shall be conducted in English language.
The Arbitration Rules in the Arbitration and Conciliation Act, 1988 shall apply.
The Award shall be delivered within six (6) months of the appointment of the sole arbitrator (or the third arbitrator, as the case may be) unless the parties extend the time.
Dated the ........................... day of .......................... 20...........
MEDIATION
MEANING AND PRINCIPLES
Mediation as a form of Alternative Dispute Resolution (ADR) aims to determine the conditions of any settlements reached rather than accepting something imposed by a third party. Thus, Mediation aims at working with the users in conflict to incorporate the information or viewpoints of both, while ensuring that the result conforms to all applicable policies. At the same time, it endeavours to produce sufficient peace between the parties to allow amicable discussion and prevent the need for future dispute resolution.
Mediation is also an activity in which a neutral third party, the mediator, guides and regulates structured discussion to facilitate reaching consensus on a disputed issue.
Mediation is intended to achieve a way for people to keep working happily together and build better articles, while growing from the mutual exchange. It is also an arrangement for parties who, although genuinely interested in resolving their disputes, cannot find common agreement.
Mediation could also be referred to as an informal process, aimed at enabling the parties to a dispute to discuss their differences in total privacy, with the assistance of a neutral third party (the mediator), whose task it is first to help each party to understand the other party’s view of the matters in dispute and then to help both parties to make a dispassionate objective appraisal of the total situation.
As part of the process, the mediator will talk confidentially with each party. The object of the process is to help the parties to negotiate a settlement. The discussions are wholly without prejudice; that is, nothing that is said by either party can be used or referred to in any proceedings in a Court. The mediator arranges and chairs the discussions and acts as an intermediary to facilitate the progress towards settlement.
MEDIATORS
A mediator is a person who works with both sides in a dispute in an attempt to reach an agreement. Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial.
ROLES AND FUNCTIONS OF MEDIATORS
Mediators can contribute to the settlement of disputes by creating favourable conditions for dealing with them. This can occur through:
Providing an appropriate physical environment – This is through selection of neutral venues, appropriate seating arrangements, visual aids and security.
Providing a procedural framework – This is through conduct of the various stages of mediation process. As the chair of the proceedings, they can establish basic ground rules, provide order, sequence and continuity. The mediators opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based.
Improving the emotional environment – This is a more subtle function and varies among mediations and mediators. They can improve the emotional environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.
CHARACTERISTICS OF MEDIATION
The principal characteristics of mediation are –
Mediation is a non-binding procedure controlled by the parties – A party to mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator's role is, rather, to assist the parties in reaching a settlement of the dispute. Indeed, even when the parties have agreed to submit a dispute to mediation, they are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests. However, parties usually participate actively in mediations once they begin. If they decide to proceed with the mediation, the parties decide on how it should be conducted with the mediator.
Mediation is a confidential procedure – In mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot be provided to anyone - including in subsequent court litigation or arbitration - outside the context of the mediation. Mediation's confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.
Mediation is an interest-based procedure – In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In mediation, the parties can also be guided by their business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their past conduct. When the parties refer to their interests and engage in dialogue, mediation often results in a settlement that creates more value than would have been created if the underlying dispute had not occurred.
Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Indeed, one could say that, even when a settlement is not achieved, mediation never fails, as it causes the parties to define the facts and issues of the dispute, thus in any event preparing the ground for subsequent arbitration or court proceedings.
DISTINGUISHING MEDIATION FROM OTHER FORMS OF DISPUTE SETTLEMENT
ARBITRATION AND MEDIATION
The role of a mediator is unlike the role of an arbitrator; mediators are facilitators of voluntary discussion, while arbitrators hear evidence and issue binding rulings, including the ability to issue sanctions against users
Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly bindingarbitration, in a process called 'mediation/arbitration'. In this process, if parties are unable to reach resolution through mediation, they can shift to an arbitrator, which entails shifting the mediation process into an arbitral one, seeking additional evidence as needed (particularly from witnesses, if any, since witnesses are normally not called upon by a mediator), and finally rendering an arbitral decision.
Mediation/arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator's unique role as someone who wields coercive power over neither the parties nor the outcome. If parties in mediation are aware the mediator might later need to act in the role of judge, the process could be dramatically distorted. However, mediation-arbitration often involves using different individuals in the role of mediator and – if needed later – arbitrator, but this is not always the case.
MEDIATION AND LITIGATION
Mediation offers a process by which two parties work towards an agreement with the aid of a neutral third party. Litigation, however, is a process in which the courts impose binding decisions on the disputing parties in a determinative process operating at the level of legal rights and obligations.
These two processes sound completely different, but both are a form of dispute resolution. Litigation is conventionally used and conventionally accepted, but Mediation is slowly becoming more recognized as a successful tool in dispute resolution.
In saying this, there are distinct differences between the two processes. Mediation claims to resolve many of the problems associated with litigation, such as the high costs involved, the formality of the court system and the complexity of the court process. Mediation, unlike litigation does not create binding agreements unless the parties consent to it, and the Mediator has no say in the outcome.
MEDIATION AND CONCILIATION
"Conciliation" sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes. Neither mediation nor conciliation process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.
One significant difference between conciliation and mediation lies in the fact that conciliators possess expertknowledgeof the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect. On the other hand, mediation works purely facilitative: the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.
Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation has somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side's argument should they go to court; whereas facilitative mediators and transformative mediators do not do this.
Both mediation and conciliation serve to identify the disputed issues and to generate options that help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible processes; and any settlement reached should have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the party with the strongest legal argument.
HOW DOES MEDIATION WORK
This has to do with the steps in mediation (mediation process). There are six (6) steps to a formal mediation –
Introductory remarks;
Statement of the problem by the parties;
Information gathering time;
Identification of the problems;
Bargaining and generating options; and
Reaching an agreement.
INTRODUCTORY REMARKS
The mediator will wait until both parties are present and then make introductions. The physical setting will be controlled so that no party feels threatened. Most mediators will ask that if children are present, they wait outside. The mediator will then give an opening statement. This outlines the role of the participants and demonstrates the mediator’s neutrality. Some mediators will make comments about what they see as the issue and confirm the case data if briefs have been pre-submitted. Next, the mediator will define protocol and set the time frame for the process. There will be a review of the mediation guidelines and the mediator will briefly recap what it is that he has heard as the issues.
The opening statement during the introductory remarks will set out the ground rules for the mediation. These ground rules are what help the mediation move along smoothly. Parties should not interrupt each other; the mediator will give each party the opportunity to fully share their side of the story.
STATEMENT OF THE PROBLEM BY THE PARTIES
After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most often, the person who requested the mediation session will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party. If there are lawyers present who make the initial statement, the mediator will then ask the client to also make a statement. The rationale behind the statement of the problem is not necessarily a search for the truth; it is just a way to help solve the problem.
INFORMATION GATHERING
The mediator will ask the parties open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties, and will summarize often. This helps the mediator build rapport between the parties, especially when a facilitative style is used.
PROBLEM IDENTIFICATION
This might also be part of other segments. The mediator tries to find common goals between the parties. The mediator will figure out which issues are going to be able to settle or those that will settle first.
BARGAINING AND GENERATING OPTIONS / REACHING AN AGREEMENT
Methods for developing options may include group processes, discussion groups or sub-groups, developing hypothetical plausible scenarios, or a mediator’s proposal where the mediator puts a proposal on the table and the parties take turns modifying it. However, the most commonly used method is the caucus (a method used between people to promote a particular policy or interests).
Once the participants are committed to achieving a negotiated settlement, the mediator will propose a brainstorming session to explore potential solutions. This can lead to a final agreement, which diffuses the conflict and provides a new basis for future relations.
The mediator may decide to hold private sessions with both parties in order to move the negotiations along. This caucus session will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions.
KEY QUALITIES OF THE MEDIATION PROCESS
Voluntary – A party can leave at any time for any reason, or no reason.
Collaborative – As no participant in mediation can impose anything on anyone, everyone is motivated to work together to solve the issues and reach best agreements.
Controlled - Each participant has complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on a party.
Confidential – Mediation is generally confidential, as you desire and agree, be that by statute, contract, and rules of evidence and/or privilege. Mediation discussions and all materials developed for mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. A mediator is obligated to describe the extent of mediation confidentiality and exceptions to that confidentiality. The extent of confidentiality for any "caucus meetings" (meetings between the mediator and individual parties) should also be defined.
Informed – The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutually acceptable experts can be retained. Expert advice is never determinative in mediation. The participants always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought, is ultimately, a decision of each mediation participant.
Impartial, Neutral, Balanced and Safe – The mediator has an equal and balanced responsibility to assist each mediating party and cannot favour the interests of any one party over another, nor should the mediator favour a particular result in the mediation. A mediator is ethically obligated to acknowledge any substantive bias on issues in discussion. The mediator's role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.
Self-Responsible and Satisfying – Based upon having actively participated in voluntarily resolving issues, participant satisfaction and the likelihood of compliance are found to be elevated through mediation compared to court options.
ETHICAL STANDARDS REQUIRED OF MEDIATORS
Knowledge – sufficient proficiency on the subject matter of dispute.
Honourable – fairness, candour and decorum; to earn respect and confidence of the parties.
Good listener and high analytical skills.
Impartial facilitator – moves the parties towards amicable resolution of the dispute.
Facilitates resolution of the dispute timely.
Ensures confidentiality.
Do not propose or impose decision on the parties but adopt techniques to help the parties arrive at their mutually agreeable solutions.
Ensures resolution by parties is reduced into writing with all terms and points clearly spelt out.
Displays leadership skills and control the proceedings.
A mediator is not bound to take notes because he is not expected to decide for the parties the outcome of the mediation.
NEGOTIATION
An indispensable step in any Alternative Dispute Resolution (ADR) process is negotiation. It is a fundamental key to all consensual Alternative Dispute Resolution (ADR) activities and, in fact, the most satisfactorily method of settling disputes.
The ability to negotiate is inherent, that is, it is an art which is learnt from the earliest stage. Usually, negotiation consists of a quid pro quo of a sort, which is, giving up something in order to get something in return.
It involves discussions or dealings about a matter, with a view to reconciling differences and establishing areas of agreement, settlement or compromise that would be mutually beneficial to the parties or that would satisfy the aspiration of each party to the negotiation. Compromise here implies flexibility on both sides and flexibility derives from a genuine desire on the part of the parties to reach an agreement.
Each adult person would at one time or the other have consciously negotiated one agreement or the other, personal and financial and we might all have developed our own individual approach in trying to persuade others to give what we want, which is what negotiation is all about.
NEGOTIATION APPROACHES
There are various approaches to negotiation; its procedure and technique vary with each negotiation, depending on the nature of the issues being negotiated, the parties to the negotiation together with their skill, knowledge and experience.
The nature and personality of the negotiator is at once also relevant. A negotiator may be a tough and aggressive hard bargainer who may by nature is always reluctant to concede; he may be a person who would always want to heckle or threaten his opponent, that is, negotiating by browbeating; or he may be the opposite, that is, one who would implicitly adopt a pleading manner or cajole his opponent to submission.
There are no formal institutions as such where negotiation skills are learnt other than in continuing education forums like seminars. However, negotiating capacity and ability is enhanced by a thorough knowledge of its theories and intricacies.
PROCEDURE FOR NEGOTIATION
There are three (3) distinct steps in every negotiation. These are –
Step 1 – This involves the definition of the problem, the clarification of objectives, finding out exactly what the other side wants, that is, trying to assess the underlying needs or preferences of the other party to enable you develop a strategy to meet.
Step 2 – It is necessary at this step to have a brief but working knowledge of the habits, antecedents and inclinations of the other party to the negotiation. This information will help you tailor your strategy to meet his need.
Step 3 –This is the agreement stage. It is where compromises are made and a mutual and satisfactory conclusion is reached. Surprisingly, in civil law systems, unlike in common law jurisdictions, there is an overriding principle of good faith in contract negotiation and performance.
IMPORTANCE OF NEGOTIATION
Negotiation requires participants to identify issues about which they differ, educate each other about their needs and interests, generate possible settlement options and bargain over the terms of the final agreement. Successful negotiations generally result in some kind of exchange or promise being made by the negotiators to each other. The exchange may be tangible (such as money, a commitment of time or a particular behaviour) or intangible (such as an agreement to change an attitude or expectation, or make an apology).
TYPES OF NEGOTIATIONS
Negotiation may involve settlement of disputes, or domestic transactions such as banking, commercial or property transaction. It may also involve international transaction such as crude oil and agricultural exports, imports of industrial goods and technologies.
Whatever the type of negotiation, a legal practitioner must prepare for negotiation. Negotiation must not be seen as an easy option to litigation. The practitioner must prepare for negotiation in the same way he or she must prepare for litigation. To prepare for negotiation the facts of the matter must be ascertained and the objective which the client intends to achieve must be ascertained. The law applicable to the matter must also be a negotiated agreement.
The Best Alternative to Negotiated Agreement (BATNA) and Worst Alternative to Negotiated Agreement (WATNA) on the matter must be considered before deciding whether the matter is best resolved by negotiation or other means.
NEGOTIATING STRATEGIES STYLES AND TACTICS
Negotiating strategies are the methods which a negotiator uses to achieve his or her real objective in order to reach an agreement on the matter under negotiation. There are two types of negotiating strategies:-
(a) Competitive or Positional (otherwise known as win/lose)
(b) Co-operative or Problem-solving (otherwise known as win/win)
Negotiators also have distinctive negotiating styles. Each negotiator's style is influenced by his individual personality, the strategy he intends to adopt and his objective. Negotiating styles have been classified into three: Soft, Hard and Firm.
Negotiators also use tactics, to achieve their objective. Many tactics are used by negotiators and there are as many tactics as there are negotiators. The commonly used tactics includes – control of agenda; contextual manipulation; overwhelming numerical strength; puffs; threats; take it or leave it; piecemeal; package; nibble; limited authority; lack of authority; behavioural; and psychological tactics.
STAGES OF NEGOTIATION
Negotiation is a process that goes through several stages. Writers have identified different stages through which a negotiation must pass. The stages of negotiation identified vary from three to eight. The number of stages through which a negotiation is processed is divided, . though important, is a matter of individual classification preference. More important is what takes place during the negotiation process.
As negotiation is a process, it passes from one stage to another, and may or may not lead to an agreement. In analyzing the negotiation process, four stages are identified:
(a) Opening;
(b) Bargaining;
(c) Closing; and
(d) Execution.
PREPARING AND PLANNING FOR NEGOTIATION
The following should be put into consideration when planning and preparing for negotiation –
It is advisable to first and foremost, understand the facts and issues involved.
Then you are to decide what is least and the most you can expect during negotiation.
You should know what is not negotiable in order to avoid irrelevant matters.
Know what the other side cares about.
Finally, know what is in both interest so that both parties will be satisfied (or almost satisfied) at the end.
CONDUCTING NEGOTIATION
This has to do with the following –
Try to build a good relationship with the other party.
Be friendly and cordial throughout.
Always speak about what you would like (e.g I think, I feel, I suggest, etc).
Find out what the other party will like.
Brainstorm on solutions or options to solve the problem.
Do not make unfair or unrealistic demands.
Do not become abusive, over emotional or threatening.
Try and offer to give something away in exchange for something else from the other party.
PRINCIPLES OF LAW LECTURE NOTE - CONTROLLING BODIES IN THE LEGAL PROFESSION
INTERNATIONAL INSTITUTE FOR TOURISM AND HOSPITALITY
MY NOTE On – Principles of Law –
REGULATORY AND CONTROLLING BODIES OF THE LEGAL PROFESSION/EDUCATION
The principal organs that control and regulate the legal profession are –
The Council of Legal Education;
The Nigerian Bar Association;
The General Council of the Bar;
The Body of Benchers;
The Legal Practitioners Privileges Committee;
The Legal Practitioners Remuneration Committee; and
The Legal Practitioners Disciplinary Committee.
COUNCIL OF LEGAL EDUCATION
ESTABLISHMENT AND FUNCTION
The Council of Legal Education was established in 1962 by the Legal Education Act, 1962 which has now been replaced by the Legal Education (Consolidation) Act 1976, Cap. L11, LFN 2004.
The Council of Legal Education is a body corporate and is charged with the education of persons seeking to become members of the legal profession–section 1(2) of the Act. This function is discharged through the institution of the Nigerian Law School where persons seeking to become legal practitioners are given appropriate professional and practical legal education.
The Council of Legal Education also has the function to assume responsibility for those matters in respect of which, before the commencement of the Act, the Nigerian Institute for Continuing Legal Education had responsibility – section 3 of the Act.
It also has a function to issue certificates to persons qualified for call to the Bar – section 5 of the Act.
COMPOSITION
The Chairman is appointed by the Federal Executive Council on the Federal Attorney General’s recommendation.
States Attorney General and in the absence of a State Attorney General, the Solicitor General of the States.
A representative of the Federal Ministry of Justice appointed by the Attorney General of the Federation.
Heads of Faculty of Law of any recognised university in Nigeria, whose course of legal studies is approved by Council as sufficient qualification for admission to the Law School.
The President of the Nigerian Bar Association.
Fifteen (15) persons entitled to practise as legal practitioners in Nigeria of not less than 10 years post call selected or elected by the Nigerian Bar Association.
The Director General of the Nigerian Law School.
Two authors of a published learned works in the field of law appointed by the Federal Attorney General.
Please note that the Chairman and the two authors hold office for four years and may be reappointed for another four years unless they resign or are removed. Also, Council members are not entitled to any remuneration – section 2(5) of the Act.
Section 4 of the Actalso empowers the Attorney General of the Federation to give Council, directions of a general nature or relating generally to particular matters with regard to the exercise of its functions and the Council has the duty to comply with these directives.
NIGERIAN BAR ASSOCIATION
The Nigerian Bar Association (NBA) is recognised by statute as far back as 1933 when the Legal Practitioners Ordinance of that year provided for the nomination of Members of the Association as Members of the Legal Practitioners Committee. However, it was not until 1959 that NBA became organised in its present national form under the Legal Practitioners Act, 1962 which makes provision for its sustenance. Though, this provision was deleted in the Legal Practitioners Act, 1975.
By virtue of Section 8(2), 90 per cent of practising fees collected are to be paid by the Chief Registrar of the Supreme Court to the NBA for its sustenance, and 10 per cent to the Body of Benchers.
COMPOSITION
Every person duly enrolled as a legal practitioner in Nigeria is a Member of the NBA. However, there are two categories of membership by virtue of Article 3 of the NBA Constitution, which are – (i) Full membership; and (ii) Honorary membership.
Those enrolled as legal practitioners are full members whereas honorary members are members of the legal profession within or outside Nigeria admitted as such by the Annual General Conference on the recommendation of the National Executive Committee, and they include serving and retired Judges and Magistrates.
AIMS AND OBJECTIVES OF NIGERIAN BAR ASSOCIATION
Its aims and objectives includes the –
Maintenance of the honour and independence of the Bar.
Defence of the Bar and its relation with the Judiciary and the Executive – clause 2(b) of the Constitution of the Nigerian Bar Association.
Promotion and advancement of Legal Education, continuing Legal Education, advocacy and Jurisprudence – clause 2(b).
Improvement of the system of administration of justice, its procedures, arrangement of Court business and regular law reporting – clause 2(c).
Encouragement of the establishment and maintenance of a system of legal aid – clause 2(d).
Promotion of law reform – clause 2(e).
Maintenance of the highest standards of professional conduct, etiquette and discipline – clause 2(f).
Encouragement and protection of the public’s right of access to the court – clause 2(i).
Promotion of the rule of law, protection of fundamental liberties, independence of the judiciary – clause 2(k);and
Protection and aiding of newly qualified, incapacitated and aged members of the Association - clause 2(e).
LEGAL STATUS OF NBA
The Trustees of NBA are registered as “Registered Trustees of NBA”. Therefore, it is a juristic personality and not a juridical personality. It is a body corporate with perpetual succession, a common seal, the power to hold property and to sue and be sued in its corporate name. InFawehinmi v. NBA (1989) 2 NSCC 43, the fact that the trustees of NBA were registered was not brought before the Court. Otherwise, the Supreme Court would not have pronounced that the NBA is not a juristic person and should be sued in a representative capacity.
GENERAL COUNCIL OF THE BAR
ESTABLISHMENT AND COMPOSITION
The General Council of Bar, also referred to as “Bar Council” is established by Section 1(1) of the Legal Practitioners Act, 1962, which was replaced by the Legal Practitioners Act, 1975, now the Legal Practitioners Act, 1990, Cap. L11, LFN 2004. The members are –
The Attorney-General of the Federation as the President;
The Attorney General of the States; and
Twenty (20) members of the Bar Association and not less than 7 of them shall be legal practitioners of not less than10 years post call – section1(2) of the LPA, 1990.
FUNCTIONS
By Section 1(1) of the LPA, the Bar Council was originally charged with the general management of the affairs of NBA subject to any limitations provided by the constitution of the NBA. The present functions under the Act are –
It shall be the duty of the Bar Council to make rules from time to time on professional conduct in the legal profession and cause such rules to be published in the gazette and distributed to all the branches of the Association – section 12(4) of the LPA. It is in exercise of this power that the council has made the Rules of Professional Conduct, 2007, for legal practitioners.
It shall have power to make rules as to the opening and keeping by a legal practitioner of accounts at banks for client’s money, and the keeping of records of particulars of moneys received or held by them on account of a client. The rules may also empower the council to take necessary actions to ascertain whether or not the rules are being complied with – section 20 of the Act.
The Attorney-General of the Federation shall consult the Bar Council before fixing the practicing fees payable by legal practitioners – section 8(2) of the Act.
THE BODY OF BENCHERS
ESTABLISHMENT
Section 3(1) of the LPA, 1990 establishes the Body of Benchers. The body consists of legal practitioners of the highest distinction in the legal profession in Nigeria. By virtue of Section 3(2), it is a body corporate with perpetual succession and a common seal.
FUNCTIONS
Formal call to Bar of aspirants.
The issuance of Call to Bar Certificate – section 4(3) of the Act.
Prescription of Call Fee – section 5(d) of the Legal Practitioners Amendment Decree No. 21 of 1994.
The exercise of disciplinary jurisdiction over Members of the profession and students seeking to become legal practitioners – section 8 of the Decree.
Prescription of Practising Fees in consultation with the Nigerian Bar Association.
They take measures which appear necessary or expedient for maintaining the traditional values of the legal profession and in line with this, they have made regulations for prospective legal practitioners prescribing the following:
The keeping of three dinning terms by aspirants;
Unblemished conduct as pre-requisite for call to Bar; and
Sponsorship of aspirants in writing by two members of the Body of Benchers.
Sign sponsorship form.
The Body of Benchers has also been given the responsibility of the general management of the affairs of the NBA – section 2 of the Decree.
COMPOSITION
1. Chief Justice of Nigeria and all the Justices of the Supreme Court;
2. The President of the Court of Appeal;
3. The Attorney-General of the Federation and Minister of Justice;
4. The Presiding Justices of the Court of Appeal Divisions;
5. The Chief Judge of the Federal High Court.
6. The Chief Judge of the Federal Capital Territory (FCT), Abuja;
7. The Chief Judges of all the States of the Federation;
8. The Attorneys-General of all the States of the Federation;
9. The Chairman of the Council of Legal Education;
10. Thirty (30) legal practitioners nominated by the Nigerian Bar Association (NBA);
11. Not more than ten (10) legal practitioners who appear to the Body of Benchers to be eminent legal practitioners of not less than fifteen (15) years post call standing.
LIFE BENCHERS
The Chief Justice of Nigeria by virtue of his position;
Persons who are members by virtue of section 2A(1)(b) – (f) of the LPA, 1962 at the time of the coming into operation of the Legal Practitioners (Amendment) Act, 1971; and
The twelve (12) persons elected by the Nigerian Bar Association under section 2A(1)(g) of the LPA, 1962, as amended, as aforesaid, who have been duly elected at the time of the inaugural meeting of the Body.
The Body of Benchers has powers to confer membership of the Body for life on any person who would otherwise not be a member for life – regulation2 of the Body of BenchersRegulations. Also, Life Benchers have the Exclusive right to sit at the first row when appearing in court.
CHAIRMAN AND VICE CHAIRMAN
The Regulation provides for the appointment of a Chairman and a Vice Chairman of the Body, such that when the Chairman is a member of the Bench, the Vice Chairman shall be a member of the Bar and vice versa – regulation 3 of the Body of Benchers Regulation.
It is also provided under the regulation that the Vice Chairman shall succeed the Chairman after his one year term.
LEGAL PRACTITIONERS PRIVILEGES COMMITTEE
ESTABLISHMENT
The Committee is established by section 5(3) of the LPA. It was set up in connection with the institution of the rank of Senior Advocates of Nigeria (SAN).
FUNCTIONS
Conferment of the rank of SAN on legal practitioners of not less than 10 years post call who have achieved distinction in the legal profession in such manner as the committee may from time to time determine – section 5(1) and (2) of the LPA.
Making rules as to obligations and privileges to be conferred on SAN as well as restrictions and mode of appearance to ensure the dignity of the rank of SAN. The SAN (Privileges and Functions) Rules, 1979 were made by the Committee and conferred the following privileges on SAN:
The exclusive right to sit at the Inner Bar or Front Row.
The right to mention a cause on the list for mention out of turn.
The right to wear silk gown.
WAYS TO BECOME A SENIOR ADVOCATE OF NIGERIA (AS SET OUT BY THE CHIEF JUSTICE OF NIGERIA IN JULY 1990)
The applicant shall furnish to the Committee or the Chairman 15 copies of his application attaching –
Particulars of at least six cases in which he appeared before the Supreme Court within the last three (3) years preceding the date of his application; or
Particulars of two contested cases at the Supreme Court and at least four contested cases at the Court of Appeal, or
One contested case at the Supreme Court, four contested cases at the Court of Appeal and at least six contested at the High Courts.
The Attorney-General of the Federation, if not already a SAN shall be made a SAN unless the Committee thinks he is not a fit and proper person.
In exceptional circumstances, academic Members of the profession who have distinguished themselves through teaching and/or published works by making substantial contributions in the field of law and jurisprudence. Particulars and copies of such works should be supplied.
All former Queen’s Counsel who applied shall be conferred with the rank.
Partners in Chambers who severally satisfy all the criteria are eligible, but not associates or salaried juniors.
In addition to forensic excellence, an applicant shall furnish evidence of:
Good law office with good library; and
Having at least two junior legal practitioners and staff in his Law Office.
Good character and reputation, honesty, integrity, ability and sound knowledge of the law.
Successful practice at the Bar, satisfactory presentation of cases in Court and high standard in the profession.
Finally, respect for the Code of Conduct and etiquette at the Bar and loyalty to the profession.
COMPOSITION OF THE COMMITTEE
It shall consists of the following –
The Chief Justice of Nigeria. (Chairman)
The Federal Attorney General.
One Justice of the Supreme Court.
President of the Court of Appeal.
Five Chief Judges of State High Courts.
The Chief Judge of the Federal High Court.
Five Legal Practitioners who are Senior Advocates of Nigeria.
However, it should be noted that it is the Chief Justice of Nigeria (CJN) that appoints number 3, 5 and 7 above.
LEGAL PRACTITIONERS REMUNERATION COMMITTEE
ESTABLISHMENT
The Committee is established under section 15 of the LPA.
COMPOSITION
It shall consists of the following –
The Attorney-General of the Federation.
The Attorneys-General of the States.
The Nigerian Bar Association President; and
Three (3) other members of the NBA – section 15(1) of the LPA
FUNCTIONS
Its major function is to make orders regulating the charges of legal practitioners.
Maximum charges for transactions.
The taking of securities for payment of charges.
Agreements between legal practitioners and clients with respect to charges.
If the committee proposes to make an order, it will serve a copy of the proposed order on the President of the Bar Association. The Association may then make its presentations if any, on the proposal within three (3) months of the service of the order on the President. After considering the representation, the committee may take the order but such an order may nevertheless be annulled by the Federal Executive Council (FEC) – section 15(4) of LPA.
LEGAL PRACTITIONERS (DISCIPLINARY COMMITTEE) RULES
ESTABLISHMENT
This is a Committee of the Body of Benchers established by section 11 of the Legal Practitioners Act as amended by Decree No. 21 of 1994.
FUNCTIONS
It considers and determines allegations of misbehaviour by persons whose names are on the Roll in their capacity as legal practitioners. Appeals from their decisions lie to the Supreme Court– Section 9 of Decree 21 of 1994.
COMPOSITION
The Committee’s composition as prescribed by section 10(2) of the LPA has since been altered by section 9 of Decree 21 of 1994. The new composition is as follows:
A Chairman who shall not be either the Chief Justice of Nigeria or a Justice of the Supreme Court;
Two Justices of the Court of Appeal, one of whom shall be the President of the Court of Appeal;
Two Chief Judges;
Two Attorneys-General who shall be either the Attorney-General of the Federation and an Attorney-General of a State or two State Attorneys-General; and
Four (4) members of NBA appointed by the Body of Benchers.
The Chief Justice of Nigeria is empowered to make Rules for the procedure of the Committee, and in exercise of this power, he has made the Legal Practitioners (Disciplinary Committee) Rules.
to take notes because he is not expected to decide for the parties the outcome of the mediation.
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