Daily Independent (Lagos)
Wale Igbintade
19 November 2008
interview
Olisa Agbakoba, SAN, is the former President of the Nigerian Bar Association. He is the Principal Partner in Olisa Agbakoba & Associates. Agbakoba is also the second vice president of the Nigerian Institute of Arbitration (NIA) and is the founding president of the Nigerian Chamber of Shipping (NCS). As human rights activist, Agbakoba experienced firsthand the brutality of the Abacha regime. He has been detained repeatedly for his pro-democracy activities; including a six-month stint in 1993 following the military coup that annulled the June 112 presidential elections. His multi-sector law firm is involved in diverse areas, including, shipping, oil & gas, development law, litigation, alternative dispute resolution, international advisory services, among others. In this interview with Wale Igbintade, he speaks on his life after office and the need for the establishment of arbitration institutions in Nigeria. Excerpts
Since you left the Nigerian Bar Association as president, not much has been heard from you, what have you been doing?
Since I left the NBA, I believe I have been more organised and more predictable and I am beginning to do new things, which I think are as important as far as am concerned as the work I did in NBA. Essentially, I am a member of the Vision 2020 National Steering Committee, which was set up to challenge Nigerians and all the key actors on whether it is possible for Nigeria to attain the status of 20 most industrialised countries in the world, which is 12 years away.
There is a particular sub-committee, which I am very interested in and that is the Financial Services Sub Committee. Governor Soludo of the Central Bank chairs this committee. The committee is dealing with how the Financial Services Sector can be an optimal sector to lead Nigeria to this goal by 2020. To do that, we are looking at the legal framework, we are looking at regulating institutions and we are looking at laws generally.
I think it is very apt now that there is an international financial crisis. So the model we are going to learn from, the law that we are going to learn from were those of the IMF, the World Bank, WTO and the multilateral agreements that control the International Financial Capital. But now the Chinese have revised the international economic order. China was the country that was socialised while America was the country that was privatised. Now it is the other way round, America and the Western countries are socializing, they are buying banks and the Chinese are privatising. So there is a peculiar economic turmoil in the world and I think it presents big challenges for Nigeria. So, as the Chairman of the Legal Implementation Committee of the Vision 2020 financial services sector project, our challenge now is, what can we add to the Nigerian financial landscape that would boost development, which is the work I am presently engaged in.
We need to ask ourselves, why is it that India, Dubai, Brazil, Malaysia, Singapore, these so called developed but still developing countries, how come they have managed to perfect a formula for development, which we have not. The answer lies in building your own institutions from your own perspective. There is no one prescription like the World Bank tells us. You see what is happening by trying to liberalise the market, which they tell us to do, their market collapsed. One thing that I know which must come out strongly in legal fame work I am developing is that, we must do it from the point of view of the Nigerian experience.
I was happy that about three weeks ago, a national newspaper had the argument on both sides in relation to arbitration. The argument by our friend in the Chartered Institute of Arbitrators UK branch and the Chartered Institute of Arbitrator Nigeria proper is as far as I am concerned mis-focused in the last 30 years.
Arbitral practice is not in Nigeria for the simple reason that we don't have arbitral institution. So when I was at the New York convention on arbitration, I had interactions with the Chinese and as President of the NBA, I travelled to China. On return, I briefed the Federal Attorney General and the immediate past Governor of Lagos State. I am happy that governor of Lagos State has now established a Lagos Court for Arbitration. That is very important because it is the very first step in institutionalising arbitration practice in Nigeria.
What does Nigeria stand to benefit from arbitration institution?
That is a good question; just recently I had a client who wanted me to go to London to appear as an expert witness. I was shocked that everything about the case is Nigeria. The vessel is in Nigeria, it was used by Shell, paid for by NNPC but we are yet paying arbitration experts in the United Kingdom and I'm now forced to spend money and fly on British Airway and go to the UK.
So, a country will not develop if you don't close all these gaps. Our challenge is to look at economic systems and to see what model will best enhance our development. For instance, the Chinese have a peculiar type of privatisation law. What they do? They know that government is not good at business, so the Chinese government buys what we popularly call here Hiace. In China, it is called Chinbe because they have an exclusive franchise from Toyota. Hundred percent of the shares is owned by the Chinbe's Motor Corporation but it is run as a private company. So that you will not even know that the government owns it. That model of privatisation has worked. Our own model, which the Americans called short therapy, has failed. The legal framework has collapsed, the institution has collapsed and we are where we are today. The result is that, few people have benefited from the resources of state owned enterprises in the last 30 years.
How do you feel about the proposed establishment of Lagos Court of arbitration?
I was very thrilled when I got the notice for the public hearing on Lagos Court of Arbitration. There is another one being planned at the national level, it is called the National Court of Arbitration. When you put these things in place, it will mean that when our Western friends tell us to come to London, we will say no.
This is because we are going to put in a clause to read "arbitration in Lagos" in all our agreements and that means we will begin to have administrators and their allied services. A country does not develop by not understanding what its economy is. In United Kingdom for instance, they have a very advanced educational system, which they market worldwide. It is worth about £8 billion a year, just from education and they don't joke with foreign students. They charge you and those incomes they use to run their system.
It is fitting that something should be said about NBA, it should be given the credit for pioneering institution arbitration in Nigeria but it refused to grow. The fact is that the Nigeria Bar Association institutionalised arbitration practice in the country.
So how we can enhance arbitration practice in Nigeria
We have to start somewhere. A lot more need to be done in strengthening the ethical quality of lawyers and that is why as the President of the Nigeria Bar Association, I stressed the need for the Attorney General of the Federation to convey the general meeting of the Bar, which is a body regulating legal practice in Nigeria. Contrary to the general wisdom and convention, the NBA is not as strong a body as you might think. The NBA does not control its finances; neither can it make any law. The Association depends on the Attorney General of the Federation. If you look at the Legal Practitioners Act, the Attorney General's role in the affairs of the NBA is substantial.
Still on arbitration, recently there was a dispute between the organisers of Cora Awards and the Cross River State Government. While Cora Award is claiming that there is a clause in their agreement that says parties should resolve all disputes through arbitration, the Cross Rivers State Government insist they must go to court. How do you see this face-off?
It is wrong; again this is part of the challenges of the development of arbitration. In fairness to arbitration practice in the West, they understand the nature of business hence they developed alternative ways of resolving business disputes. As you know, arbitration is the key to robust business hence Western society depends very strongly on the arbitral agreement. In fact, once you have signed arbitration agreement, you cannot resign from it, you can't call it back and you are bound to the proper venue. So the simple answer to your question is that the Judge was wrong, immediately there is an arbitration clause in an agreement, the proper thing would be to refer it to the arbitration except unless they could show a special reason why they would not go to the arbitration venue.
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