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HARNESSING INFORMAL CROSS BORDER COMMERCIAL DISPUTE RESOLUTION MECHANISMS FOR ECONOMIC DEVELOPMENT IN WEST AFRICA

HARNESSING INFORMAL CROSS BORDER COMMERCIAL DISPUTE RESOLUTION MECHANISMS FOR ECONOMIC DEVELOPMENT IN WEST AFRICA. Presented by. . Oluwafemi A. LADAPO (Chartered Arbitrator and Mediator) State Counsel Ministry of Justice, Ibadan, Oyo State, Nigeria.

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HARNESSING INFORMAL CROSS BORDER COMMERCIAL DISPUTE RESOLUTION MECHANISMS FOR ECONOMIC DEVELOPMENT IN WEST AFRICA

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  1. HARNESSING INFORMAL CROSS BORDER COMMERCIAL DISPUTE RESOLUTION MECHANISMS FOR ECONOMIC DEVELOPMENT IN WEST AFRICA Presented by . Oluwafemi A. LADAPO (Chartered Arbitrator and Mediator) State Counsel Ministry of Justice, Ibadan, Oyo State, Nigeria.

  2. Wherever peace is lacking, business cannot grow!

  3. ECOWAS’ response to sub-regional conflict issues • ECOMOG √ • High Powered Mediations √ • Conflict Prevention Framework √ • Commercial dispute management x

  4. But also, wherever commercial disputes cannot be efficiently managed, trade cannot flow!

  5. Inefficient trade ∝ 1 .dispute management Trade flow

  6. Dispute Management Mechanisms

  7. Time (in days) to enforce a contract by litigation (adjudication) in WASource: World Bank 2010

  8. Cost to enforce a contract by litigation (adjudication) in WA (% of claim)Source: World Bank 2010

  9. Number of Procedures to enforce a contract by litigation (adjudication) in WA Source: World Bank 2010

  10. Enforcing Contracts Across Regions*Source: World Bank 2010

  11. Litigation (Adjudication) Strengths Challenges Technical. Slow. Rigid. Expensive. Prone to systemic corruption. Parties lose total control of process. • Binding outcome. • Use of state might for enforcement. • Widely known.

  12. ADR Strengths Challenges Enforcement. Recognition. • Parties own process. • Time saving. • Parties can shop for a bargain. • Process less technical. • Parties can choose their own rules.

  13. State of ADR in the ECOWAS sub-region Infancy

  14. Article 16 ECOWAS Treaty 1993 Arbitration Tribunal Establishment and Functions 1. There is hereby established an Arbitration Tribunal of the Community. 2. The status, composition, powers, procedure and other issues concerning the Arbitration Tribunal shall be as set out in a Protocol relating thereto.

  15. By a 2005 Protocol, the powers of the Arbitral Tribunal have been temporarilyconferred on the ECOWAS Court of Justice.

  16. Challenges facing the ECOWAS Court in the administration of its arbitral jurisdiction- Huddle of access through member countries.- System is litigation oriented. - Judges are trained for litigation.

  17. WAY OUTHarness the potentials in modern and traditional dispute management mechanisms

  18. Traditional ADR Strengths Challenges Applicability where parties do not share common cultural background. Applicability to complex transactions. (But can adapt.) • Easier access by parties of common background. • Already in use. • Draws commitment and compliance strength from culture common to parties. • Mostly cost free or low cost. • Usually conducted in language understood by both parties. • Third-party interveners readily available. • Appropriate for SMEs.

  19. Cross-border tongues and cultures: Opportunities for dispute management customs

  20. Recommendations Formulation of a robust framework which will sensitise member countries, business persons, judicial systems and other stakeholders in the commercial and financial services industries on the use, recognition and cross-border enforcement of non-judicial, commercial dispute resolution mechanisms (inclusive of both traditional and modern mechanisms), within the sub-region.

  21. Recommendation contd... Establishment of the ECOWAS Arbitration Tribunal as enshrined in article 16 of the 1993 revised ECOWAS treaty, along with rules for its efficient operation and sub-regional reciprocal recognition of awards.

  22. Recommendation contd... Promotion of legal, legal-anthropological and legal-historical research on traditional trade cultures within the sub-region, including their commercial dispute management customs and the ways of adapting and utilising them for contemporary complementary and efficient management of commercial dispute.

  23. Recommendation contd... Establishment of an institution which will conceptualise, research, promote, formulate policies and educate on issues of efficient broad-spectrum commercial dispute resolution within the sub-region.

  24. Recommendation contd... Training of judges presiding in courts covering jurisdictions contiguous to border areas and judges of ECOWAS court on the existence, recognition and enforcement of the decisions of traditional cross border dispute resolution mechanisms.

  25. WHAT YOU DO SPEAKS SO LOUD THAT I CANNOT HEAR WHAT YOU SAY - Ralph Waldo Emerson Thank you for listening.

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