26 May 2008
Lagos — The Nigerian Bar Association is poised to upgrade and shift its foreign and developmental policy eastward and in this regard, has taken special interest in China, India, Malaysia, Indonesia, and Singapore.
The NBA recognises that for the law to drive development then special links must be created between Nigeria and those countries which are currently developing aggressively.
This desire came to the fore when a delegation of the Nigerian Bar Association led by its President Mr. Olisa Agbakoba, SAN, visited China and had lengthy discussions with the All China Lawyers Association (ACLA) and the China International Economic and Trade Arbitration Commission (CIETAC). Other members of the delegation included the first Vice-President of the NBA Mr. Akuro George and the Chairman on the Section on Business Law, Mr. George Etomi and the Secretary of SPIDEL Mr. Victor Nwakasi.
The NBA delegation was received by the Deputy President of the ACLA, Mr. Li Dajin who expressed delight at the visit. Both parties soon went into serious discussions and two areas dominated the talks: The Chinese response to the WTO and Globalisation of Legal Services. Cooperation between both Bar Associations in assisting businessmen from both countries so as to develop healthy trade.
On Globalisation, the ACLA Deputy President revealed that China allows foreign law firms to open representative offices in the six major commercial cities in China i.e., Beijing, Shanghai, Guandong, and Quangzoh, etc.
At present, 91 such law firms mainly from the UK, US and the EU operate in China. However, they are forbidden from practising Chinese law and those who have breached this rule have been severely penalised. Li revealed that China has mixed feelings about the admittance of foreign law firms and would advice Nigeria to accept its inevitability but must ensure that proper regulations guiding foreign practice in Nigeria are firmly in place, on the positive side of globalization. He also stated that foreign law firms largely driven by market economy have enhanced the international law experience of Chinese lawyers and has improved standards and professionalism generally.
However, on the negative side, it has bolstered unfair competition such that the foreign law firms cart away most of the legal fees available in the Chinese market. In addition, they have poached young lawyers of Chinese origin through whom they breached some of the rules of practice and this has made their experience with globalisation particularly unpleasant.
They were some interesting revelations about law in China. We learnt that there was no ranking of the equivalent of Senior Advocate or Queen's Counsel and that the only distinction amongst Chinese lawyers relates to academic qualification and experience. That entry to the profession is restricted to only 15,000 annually out of nearly 100,000 applications. At present, ACLA has 102,000 individual members, 11,000 law firms and 31 provincial level lawyers.
On the question of promoting trade amongst Nigerian and Chinese businessmen, Li welcomed the suggestion for collaboration between both Bar Associations which will ensure that crooks are identified and isolated. This can partially be achieved by working closely with the business units of both embassies to obtain references, when these are requested. The NBA president extended an invitation to his Chinese counterpart to attend our AGM coming up in August and the invitation was accepted.
VISIT TO CIETAC
The next visit was to CIETAC where a powerful delegation led by the Deputy Chairman of the commission welcomed the Nigerian delegation. He described CIETAC as the most important permanent arbitration institution in China. He explained further that CIETAC operates independently to resolve economic and trade disputes by means of arbitration and conciliation. It was observed that CIETAC has become so important as an institution that it has nearly 2,000 arbitrators listed in the commission and these are chosen worldwide. Regrettably, no Nigerian is on the CIETAC list of arbitrators.
Other notable features of CIETAC include: The Commission handles diverse cases from international trade, JV investments, contracts, auditing, financial disputes, IT, etc; It is supported by a secretariat with over 70 case managers and it handles nearly 1,200 cases annually; Ad-hoc arbitration institutions are not allowed in China as CIETAC enjoys a monopoly. Both the ICC and the LCIA have working relationships with CIETAC; Domestic arbitration is handled locally and CIETAC awards are enforced stringently; Costs are determined on ad valorem basis and it covers administrative and arbitrators' fees. Consequently, CIETAC proceedings are relatively inexpensive compared to other international models; The China Chamber is behind CIETAC and the enforcement of foreign related awards goes through the Chinese court system i.e., from the District Courts to intermediary Peoples' Court to the High Peoples' Court and then to the Supreme Peoples' Court; Evidence can be received electronically and there can be summary proceedings with a sole arbitrator where the dispute is below 500,000Yuans. In all other cases, three arbitrators are required.
After more exchanges, both parties agreed: That the adoption and use of CIETAC arbitration clause will facilitate the flow of arbitration between Nigeria and China; That the use of arbitration practice can be enhanced at this stage through online proceedings for small claims; That there is need for AFRO-ASIA shift in professional relationships and general economic partnership; To exchange and enhance human, capital and institutional support.
In all, the visit was described as both timely and essential given the obvious importance of both countries in their regions.
The Nigerian delegation has since returned home.- Etomi is Chairman, Section on Business Law of the Nigerian Bar Associatio
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