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

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 v
• High Powered Mediations v
• Conflict Prevention Framework v
• 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 RegionsSource
World Bank 2010

Region Procedures (number) Time (days) Cost ( of claim)
Economic Community of West African States (ECOWAS) 39.6 622.8 48.0
East Asia Pacific (EAP) 37.2 538.1 48.5
European Union (EU) 31.6 547.7 20.5
Middle East North Africa (MENA) 43.4 679.9 23.7
Southern African Development Community (SADC) 37.1 645.1 52.0
11
Litigation (Adjudication)

• Strengths

• Challenges

• Binding outcome.
• Use of state might for enforcement.
• Widely known.

• Technical.
• Slow.
• Rigid.
• Expensive.
• Prone to systemic corruption.
• Parties lose total control of process.

12
ADR

• Strengths

• Challenges

• Parties own process.
• Time saving.
• Parties can shop for a bargain.
• Process less technical.
• Parties can choose their own rules.

• Enforcement.
• Recognition.

13
State of ADR in the ECOWAS sub-region

• Infancy

14
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.

• Article 16 ECOWAS Treaty 1993

15
By a 2005 Protocol, the powers of the Arbitral
Tribunal have been temporarily conferred 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

• 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.

• Applicability where parties do not share common
  cultural background.
• Applicability to complex transactions. (But can
  adapt.)

19
Cross-border tongues and cultures Opportunities
for dispute management customs
20
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.

• Recommendations

21
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.

• Recommendation contd...

22
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.

• Recommendation contd...

23
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.

• Recommendation contd...

24
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.

• Recommendation contd...

25
Thank you for listening.

• WHAT YOU DO
• SPEAKS SO LOUD THAT
• I CANNOT HEAR
• WHAT YOU SAY
• - Ralph Waldo Emerson