BROUGHT TO YOU WEEKLY BY THE NIGERIAN INSTITUTE OF CHARTERED ARBITRATORS.
Editor: Shola Oshodi-John, AICMC, FCArb
Recent Developments
REPORT ON THE NIGERIAN INSTITUTE OF CHARTERED ARBITRATORS (NICArb’s) 2021 AfCFTA Roundtable
The Nigerian Institute of Chartered Arbitrators (NICArb) in collaboration with The National Action Committee for African Continental Free Trade Agreement (AfCFTA) and The Nigerian Chambers of
Commerce Dispute Resolution Center (NCCDRC) recently concluded a roundtable themed ‘AfCFTA AND NON-STATE PARTIES: IMPLICATIONS FOR TRADE AND DISPUTE RESOLUTION” on Friday, 30th July, 2021.
The roundtable which commenced at 10am was opened by the Registrar/CEO of NICArb, Mrs. Shola Oshodi John FCArb, who welcomed and introduced members of the panel (resource persons and discussants).
The roundtable was brilliantly moderated by Mrs. Foluke Akinmoladun FCArb.
The first resource person Prof. Jonathan Aremu during the AfCFTA-roundtable event spoke on the implications for Trade under AfCFTA giving detailed insights into the topic.
The second resource person Dr. Ken Ukaoha spoke about the Implications under Dispute Resolutions/legal issues.
The third resource person Mr. Nathan Searle gave an Overview on the theme of the event.
The fourth resource person Dr. Fatima Bello spoke about the Implementation of AfCFTA and provision of remedial measures to non-state parties amongst others.
The first discussant Otunba Pedro highlighted some of the insights on the topic discussed by other speakers and then discussed in-depth on Trade under AfCFTA.
The second discussant Professor Muhammed Ladan captured the topical areas around Domestication of AfCFTA giving very authoritative clarifications on AfCFTA, its protocols and how to move both the Nigerian executive and legislative arms of government to set in motion and fast track AfCFTA’s domestication in Nigeria.
The third discussant Mrs Shola Oshodi-John – Registrar/CEO, Nigerian Institute of Chartered Arbitrators went further to speak on the Role of Arbitral/ADR Institutions under AfCFTA.
The round table discussion ended with an insightful engagement between the participants and the panelists at the question and answer session and the Registrar/CEO gave the closing remarks.
A recorded number of over 400 participants registered for this very eventful roundtable. Kindly stayed tuned for more of NICArb’s exceptional and insightful events.
Source: Contribution by NICArb’s research team
READ YOUR CONTRACT: IT MAY COST YOU YOUR ARBITRATION AWARD
Imagine receiving an arbitration award in favor of your client. You move to confirm the award, and the award is vacated because the parties failed to mediate prior to arbitration. That is exactly what happened in Burke v. Roberson.
In December 2020, the First Court of Appeals in Houston affirmed the vacatur of an arbitration award because a condition precedent to arbitration under the governing contract – i.e., mediation – was not satisfied or waived by the parties prior to arbitration. In affirming the vacatur, the court held that the dispute was never properly before the arbitrator and that the arbitrator therefore exceeded his powers in issuing the award.
Texas law favors arbitration, and the construction industry is no exception in the pursuit of finality and findings generally not susceptible to challenge. An arbitration award “has the same effect as a judgment of a court of last resort,” thus “all reasonable presumptions are indulged in its favor” (see Port Arthur Steam Energy LP v. Oxbow Calcining LLC). Under the Texas Arbitration Act, a trial court shall confirm an arbitration award “unless grounds are offered for vacating” the award. The exclusive grounds for vacating an arbitration award are set forth in Section 171.088, the relevant ground in Burke being when an arbitrator exceeds his or her powers. An arbitrator exceeds his or her powers “by deciding a matter not properly before” them.
In Burke, the agreement at issue stated: “any controversy which touches or concerns [the Agreement] shall be resolved by mediation, and if such mediation is unable to resolve the controversy, then exclusively by binding arbitration.” The court held this conditional language
established mediation as a condition precedent to arbitration. Unless and until the parties mediated, the court reasoned that the controversy was not properly before the arbitrator. Notably, the court was not sympathetic to the appellant’s repeated attempts to mediate with appellees prior to arbitration and held such “inaction” was not a waiver of their right to mediate.
While it was a straightforward decision and premised on the very terms the parties agreed to in the governing contract, the court’s decision in Burke is every client’s nightmare that affects all parties equally – i.e., the party attempting to confirm an arbitration award. The decision suggests a potential broadening of what courts consider an arbitrator exceeding his or her powers – and yet another basis upon which a seemingly final arbitration award can be vacated.
To avoid the result in Burke when faced with a similar agreement, the parties should either mediate as required under the agreement or enter an agreed waiver of mediation. The parties can always mediate later should they decide to do so.
Source: Contribution by NICArb’s research team
SINGAPORE — FREE MEDISTION SESSIONS FOR WEDDING COUPLES AND THEIR VENDORS AFFECTED BY COVID-19 RESTRICTIONS IN SINGAPORE HAVE BEEN EXTENDED TILL THE END OF SEPTEMBER
This will facilitate the settlement of disputes between parties over wedding events arising from tightened restrictions under the current heightened alert phase, which lasts till Aug 18, the Ministry of Law (MinLaw) said on Thursday (July 29).
The rules introduced to curb the spread of Covid-19 have reduced the permissible capacity for wedding solemnizations and receptions, MinLaw said.
Marriage solemnizations now have a limit of 100 participants with pre-event testing, and 50 individuals without testing — down from the 250 people previously allowed with pre-event testing.
The meditation programme, which was first introduced by MinLaw on July 12 to cover events held between May 8 and July 31 this year, will now be extended to cover weddings scheduled between July 31 and Sept 30.
To apply for the programme, eligible parties may submit their request for mediation and a copy of the contract to MinLaw by Oct 31. The previous deadline was Sept 10.
Fall in Singapore marriages, divorces in 2020 amid Covid-19 restrictions, uncertainty MinLaw will aim to hold the mediation within two weeks of both parties consenting. A “neutral, trained mediator” will facilitate the mediation — generally conducted virtually — in a “non adversarial and confidential setting”.
The mediator will help parties work towards a mutually acceptable solution.
The ministry said it recognises that Covid-19 regulations have had a significant impact on the wedding industry including wedding couples and vendors.
“MinLaw strongly encourages eligible parties to consider mediation, participate in the programme with an open mind, and be receptive to working out a mutually acceptable solution,” it added.
Source: Contribution by NICArb’s research team
WHY ALTERNATIVE DISPUTE RESOLUTION IS USEFUL FOR BUSINESS CONFLICTS
To read more on this news, kindly visit our blog by clicking on the link
NICArb’s TOP NEWS
Source: Contribution by NICArb’s research team
MEDIATION AS A PATHFINDER IN RESOLVING FAMILY DISPUTE
By: Olawumi Odeyinka- Apantaku, LLM, BL, LLB
Legal Officer (Research & Registry) NICArb
Introduction:
A family is “a group of closely related people, known by a common name and consisting of a man and his wife (wives) and children, and probably other near relations”. Under the Nigerian law, the concept of family is closely linked to marriage.
Disputes arise between members of the family due to disagreement over certain matters leading to disharmony, this is mostly called family disputes. Family disputes may be caused by disagreements over the rights, duties, and liabilities of each member of the family. Over the years, disputes were majorly resolved through negotiation.
However, since human beings are dynamic, a need for revolution in the dispute resolution mechanisms became paramount as negotiation was no longer effective. This requirement for change led to the application of litigation in settling family disputes. Application of litigation allowed husbands
and wives to seek settlement of family disputes in Court; especially by initiating divorce proceedings through a petition in court.
Family disputes which require more privacy, confidentiality and quick dispensation need an effective way in resolving disputes. Litigation has not been able to protect the secrecy that family disputes require. This is because the courtroom is open to all except in a few cases where matters are heard in camera, although case files for such cases are still readily available to the public. It is against this backdrop; this article seeks to explore the need for Mediation to address family disputes. Mediation and Family Dispute: Mediation is a voluntary process that involves parties working together on solving their problem and using a neutral person (the mediator) to facilitate the discussions. The focus is on solving the problem rather than trying to convince one another of anything that has occurred in the past. Mediation is an ‘interest based’ process rather than forcing an entrenched position adopted by the parties to the dispute.
The three key elements for Mediation are the following:
Click on the link to continue reading
https://blog.nicarb.org/index.php/2021/07/27/mediation-as-a-pathfinder-in-resolving-family-dispute/
Source: Contribution by NICArb’s research team
