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.
Wherever peace is lacking, business
cannot grow!
ECOWAS’ response to sub-regional conflict issues
• ECOMOG √
• High Powered Mediations √
• Conflict Prevention Framework √
• Commercial dispute management x
But also, wherever commercial
disputes cannot be efficiently
managed, trade cannot flow!
Inefficient trade
dispute management
∝
1.
Trade flow
Dispute Management Mechanisms
Time (in days) to enforce a contract by litigation
(adjudication) in WA
Source: World Bank 2010
Singapore (150)
150
Guinea (276)
276
Mauritania (370)
370
Cape Verde (425)
425
Gambia, the (434)
434
Burkina Faso (446)
446
Nigeria (457)
457
Ghana (487)
487
Sierra Leone (515)
515
Niger (545)
545
Togo (588)
588
Regional Average (622.8)
622.8
Mali (626)
626
Cote dÍvoire (770)
770
Senegal (780)
780
Benin (825)
825
Guinea-Bissau (1140)
1140
Liberia (1280)
1280
0
200
400
600
800
1000
1200
1400
Cost to enforce a contract by litigation (adjudication) in
WA (% of claim)
Source: World Bank 2010
Bhutan*
0.1
Cape Verde
21.8
Ghana
23
Mauritania
23.2
Guinnea-Bissau
25
Nigeria
32
Liberia
35
Gambia, the
37.9
Cote d'Ivoire
41.7
Guinea
45
Regional Average
48
Mali
52
Niger
59.6
Benin
64.7
Burkina Faso
83
Sierra Leone
149.5
0
20
40
60
80
100
120
140
160
Number of Procedures to enforce a contract by
litigation (adjudication) in WA
Source: World Bank 2010
Ireland*
20
Gambia, the
32
Cote d'Ivoire
33
Ghana
36
Mali
36
Burkina Faso
37
Cape Verde
37
Niger
39
Nigeria
39
Regional Average
39.6
Sierra Leone
40
Guinea-Bissau
41
Liberia
41
Togo
41
Benin
42
Senegal
44
Mauritania
46
Guinea
50
0
10
20
30
40
50
60
Enforcing Contracts Across Regions*
Source: World Bank 2010
Region
Economic
Community of
West African
States
(ECOWAS)
East Asia &
Pacific (EAP)
European Union
(EU)
Middle East &
North Africa
(MENA)
Southern African
Development
Community
(SADC)
Procedures
(number)
Time
(days)
Cost
(% of claim)
39.6
622.8
48.0
37.2
538.1
48.5
31.6
547.7
20.5
43.4
679.9
23.7
37.1
645.1
52.0
Litigation (Adjudication)
Strengths
• Binding outcome.
• Use of state might for
enforcement.
• Widely known.
Challenges
• Technical.
• Slow.
• Rigid.
• Expensive.
• Prone to systemic
corruption.
• Parties lose total control of
process.
ADR
Strengths
• Parties own process.
• Time saving.
• Parties can shop for a
bargain.
• Process less technical.
• Parties can choose their
own rules.
Challenges
• Enforcement.
• Recognition.
State of ADR in the ECOWAS sub-region
Infancy
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.
By a 2005 Protocol, the powers of
the Arbitral Tribunal have been
temporarily conferred on the
ECOWAS Court of Justice.
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.
WAY OUT
Harness the potentials in modern
and traditional dispute
management mechanisms
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.)
Cross-border tongues and cultures: Opportunities for
dispute management customs
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.
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.
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.
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.
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.
WHAT YOU DO
SPEAKS SO LOUD THAT
I CANNOT HEAR
WHAT YOU SAY
- Ralph Waldo Emerson
Thank you for listening.