By: Rosecana G. Ankama, FCArb
INTRODUCTION
The Digital revolution has changed the way the world perceives things. Communication, learning, working, and business transactions are all shaped and modified by Information and Communication Technology. The Digital revolution is the propeller of economic growth and social development across the globe. Businesses through electronic commerce move at light speed, likewise transportation and communication with little or no regard to the international border. Hence, the world is truly a global village without artificial barriers.[1]
Global awareness about the usefulness of Information and Communication Technology (ICT) in promoting and enhancing growth and development is on the increase. Developed nations like the United Kingdom (UK), United States of America (USA), Germany and Japan were able to attain a present level of development through the deployment of high technology, particularly in the industrial sector.
Nigeria as a country is paying close attention and emphasis on the integration of ICT infrastructures in their policies and programmes. To this end, Nigeria economic policies and investments are currently geared towards the development of ICT capacity and infrastructure that could facilitate a digital economy among local and international trade partners.[2]
Information and Communication Technology (ICTT) is an essential tool for developing nations’ economic success; therefore, any country or region that desires to make meaningful progress in the global economy must give attention and priority to their ICT policy. Making meaningful progress in an ICT driven economy, recourse must be made to effective, speedy and articulate Conflict Resolution Mechanism. Obviously, as society grows in complexity, so does crimes, conflicts and misunderstanding. Therefore, the need to consider the application of Alternative Dispute Resolution to digital conflicts as against the traditional means of dispute resolution has become imperative.
CONCEPTUAL CLARIFICATION AND LEGAL FRAMEWORK
Digital Economy or web economy is the economic activities that result from billions of everyday online connections amongst people, businesses, devices, data and processes. Hyper-connectivity or interconnectedness of people, organizations, machines that results from the internet, mobile technology and the internet of things is the backbone of the digital economy. The digital economy is reshaping and undermining conventional notions as business transactions, structures, the interaction between firms, consumer protection, product liability, information about goods and services. With the advent of globalization, digital and traditional economies are merging into one. The Walter Brenner[3] States that:
The aggressive use of data is transforming business models, facilitating new products and services, creating new processes, generating greater utility and ushering in a new culture of management.
The digitization of everything is creating a new intelligent digital network of networks that fundamentally change the way commerce is managed, optimized, shared and deployed. We are at the crux of an era where everything can be connected, i.e. people, businesses, devices and processes without physical contact. The melding of the physical and digital world brings every asset into a digital domain where software dominates.[4]
The term digital economy was first coined in the book “The Digital Economy: Promise and Peril in the Age of Networked Intelligences” by author Don Tapscott in 1995. He enumerated three main components of the digital economy as comprising of E-business, E-Business Infrastructure and E-Commerce. We have seen the tremendous growth of digital platforms and their influence on our lives in the last 15 years.
This digital/web economy is integrated into every aspect of the user’s life, such as healthcare, education, banking, entertainment, communication, agriculture, etc. The world is connected by the internet, and almost all the biggest companies in the world (Google, Apple, Microsoft, Amazon etc.) are from the digital space controlling the digital economy. In just 100 years, the development of cheap, hardened steel enabled a host of tools to be made that drove economic growth. Today information technology enables the creation of a host of tools to create, manipulate, organize, transmit, store and act on information in digital form in new ways and through new organizational forms.[5]
In line with a global trend in business transactions, despite its infrastructural deficiencies, the Federal Government of Nigeria is embarking on a digital economy. Digital trade regulation models vary in different parts of the world, influenced and determined by the constitutional and political framework present in each country. What is prevalent in the regulatory framework of most countries is the absence of a comprehensive law regulating the digital economy. In regulating the digital economy, the European Commission adopted the digital single market strategy ensuring access to online activities for individuals and businesses under the condition of fair competition, consumer data protection and preventing copyright infringement issues.[6]
In Nigeria, there are legislations that already cover some aspect of the regulation of the digital platform like the National Information Technology Development Agency (NITDA) Act, the Copyright Act, Companies and Allied Matters Act, Consumer Protection Act, Constitution of Federal Republic of Nigeria 1999 (as amended), National Broadcasting Act etc.
Promoting Digital Economy through the use of ADR
Disputes have a primordial origin as it has been with mankind from time immemorial. Therefore, in the course of business interaction, it is inevitable that occasional disputes will occur. Disputes stemming from e-commerce can arise from several windows ranging from Communication, Tourism, Banking, Health, Industries, Educational Training, Agriculture, Commerce, Trading and Transportation. As it is customary with disputes, any dispute arising out of the above-mentioned windows are mostly referred to the regular courts for adjudication.
In Agabanelo v. UBA (Warri Branch[7]), a simple case of issuance of a bank draft lasted for 12 years from the trial court to the apex court based on technicalities of irregular signature and the addition of the words “Warri Branch”. The germane issue of a bank draft was kept aside for these 12 years, and the courts were battling with the issue of damages for defamation and the quantum of such damages.
The application of injunctions, interlocutory appeals and lack of diligent prosecutions renders judges handicapped in the speedy exercising disposition of cases in this era of the digital revolution. The consequences of these factors affect the growth of the macro-economic now driven digitally.
Myriads of benefits are conferred by the digital revolution, such as speed, efficiency, elimination of substantial errors committed by traditional commercial practice, reduction in transmission delays, the convenience of money transfer through internet banking, online shopping and communication with friends. Invariably, these benefits make the digital economy attractive in the business world. However, to sustain the up-surge of e-business in promoting the digital economy, a speedy means of resolving the attendant disputes arising from the e-commerce platform become imperative. The use of Alternative Dispute Resolution in resolving internet-based disputes can only be achieved if the players in the industry deliberately resort to it by inserting ADR clauses in their business agreement. For any industry located anywhere in the present digital world, disputes can present an array of serious problems if not addressed swiftly, effectively and cost-effectively. E-disputes can jeopardize profitability, reputation and sometimes the very existence of a business.
However, the following reasons are necessary for using ADR in promoting the digital economy in Nigeria:
- Alternative Dispute Resolution mechanisms are time-saving than litigation in a court of law. While litigation involves conformity with laid down procedures, parties to any ADR mechanism are in charge of the process of dispute resolution by setting the terms of operation.
- ADR is more of a value-added experience than litigation because it preserves the relationship between parties and business engagement.
- The digital economy is all about ease and conveniences of doing business; likewise, ADR processes are more interested in the convenience of parties and their witnesses in fixing the date, time and place of the hearing and not the convenience of the court.
- ADR processes are conciliatory in nature and do not have the connotation of a battle between the parties. This by no means suits the digital connectivity of doing business.
- Interestingly, the decisions of an Arbitral Tribunal or a result of a mediated agreement is final and binding on parties. Consequently, an arbitral award or settlement agreement is not subject to appeal. Most serious-minded businessmen and women prefer to have final decisions rather than face the prospects of appellate litigation.
CONCLUSION
It is not enough for the department of Digital Economy Development to focus on meeting the aspirations of the Federal Government in moving Nigeria towards maturity and competitiveness through the National Digital Economy Policy and Strategy. The aspirations of the citizens engaged in E-commerce as regards dispute resolution of digital economy disputes must also be re-assessed and evaluated.
To facilitate the transformation of traditional business models to digital business models and markets across all sectors and industries, there must be an enabling environment for the exchange of digital service and digital goods with the appropriate medium of resolving disputes that may arise as a result of such exchange.
It is therefore recommended that NITDA should adopt any of the ADR processes as a means of dispute resolution considering the peculiar nature of E-commerce. The court room should be the last resort for resolving internet-based disputes.
NITDA should understand that this process requires legal engineering and engagement of those who not only understand ADR issues but the internet for business and the processes of finding the nexus between an e-dispute and a process to ascertain which best fits the dispute.
For the economy to grow on a sustainable basis, E-dispute should be resolved expeditiously to avoid loss of time, resources, investment and valuable commercial relationships.
The linchpin to a verily economy is a judicial system that ensures that obligations are highly respected and enforced. NITDA should encourage a study to test the veracity of the hypothesis of swift resolution of E-disputes as against political and criminal cases, knowing that judicial response to the adjudication of E-dispute is a barometer for virile investment climate for both local and direct foreign investment.
REFERENCES
- Arbitration and Conciliation Act Law of Federal Republic of Nigeria Cap 18 2004.
- Cohen et al., (2001) In Robert D. Alkinson & Andrew S. McKay Digital Communities Program.
- Damian Heath, Consulting Director Deloitte Place Malta.
- Fabian Ajogwu (2009). Commercial Arbitration in Nigeria Law and Practice.
- Federal Ministry of Communications and Digital Economy (2018).
- National Information Technology Development Agency (NITDA) At, 2007.
- Oluwakemi Oke (2020). The Exponential Growth of the Digital Economy: Is there a Solid Legal Framework Regulating the Digital Economy? Unilag Law Review.
- Ozekhome, M.A (2005). Jurisdiction of Courts Over Cross Border Crimes and transactions in Azinge, E. (ed). Jurisprudence of Jurisdiction (Oliz Publishers Abuja), 2005 p. 498.
[1] Ozekhome, M.A.A (2005). Jurisdiction of Courts Over Cross-Border Crimes and Transactions in Azinge, E (ed). Jurisprudence of Jurisdiction (Oliz Publishers Abuja), 2005 p. 498.
[2] Federal Ministry of Communications and Digital Economy (2018).
[3] Professor Walter Brenner (2020). What is Digital Economy, Unicorns, Transformation and the Internet Things. University of St. Gallen Switzerland.
[4] Damian Heath, Consulting Director Deloitte Place Malta.
[5] Cohen et al., (2001) In Robert D. Alkinson & Andrew S. McKay Digital Communities Program.
[6] Oluwakemi Oke (2020). The Exponential Growth of the Digital Economy: Is there a Solid Legal Framework Regulating the Digital Economy? Unilag Law Review.
[7] (2000). 4SC. Pt 1 at 233.
