ESQ Legal Practice Magazine JUNE 2014 EDITION | Page 45

At least in Nigeria, when a State entity operates in the commercial
space, it is susceptible to arbitral, judicial and enforcement proceedings in the same way as any other commercial entity. The same will
be true of most other African countries.
made to integrate systems
beyond sub-regional boundaries, and to achieve a truly
pan-African system.

lawyers. And there is also the
problem of corruption.

An increase in the number of
cases involving state entities
What developments can you coming from Africa has been
observe in the Judicial
observed lately, how well
Approach towards enforcehave we balanced the notion
ment and challenges against of state contract, state
international Arbitral
immunity from execution and
Awards?
the attitude of the African
courts towards arbitration
More than 30 African states
involving state entities?
have signed up to the New
York Convention on the
At least in Nigeria, when a
Recognition and Enforcement State entity operates in the
of Foreign Arbitral Awards,
commercial space, it is
and many have statutory
susceptible to arbitral, judicial
provisions which implement and enforcement proceedings
the New York Convention.
in the same way as any other
Generally the legal framework commercial entity. The same
for enforcement exists, and
will be true of most other
most courts tend to take a pro- African countries. As I said
arbitration stance. The
before, we have noticed that
challenges lie with questions arbitration against state
of judicial independence,
entities presents peculiar
capacity and efficiency. We
features and difficulties of its
have encountered problems
own. This underscore the need
when seeking to enforce
to strengthen judicial indeawards against governmental pendence, but perhaps more
agencies. Judicial processes
importantly, it also undertend to be slow and easily
scores the need for contract
susceptible to unscrupulous
negotiators to be careful when
dilatory tactics by defence
they choose their seat of

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arbitration.
What key factors should
companies keep in mind in
making their plan of action
for resolving commercial
disputes?
If the underlying agreement
has an arbitration clause,
choice of counsel and choice of
arbitrator is critical. There
should be close interaction
between in-house counsel and
external counsel at the earliest
possible stages of a dispute.
The potential risks should be
identified as early as possible,
with a concrete plan of action
articulated. Sometimes it helps
to conduct a very neutral and
independent evaluation of
strengths, vulnerabilities and
risks.

to assess strengths, weaknesses and risks.
Three, involve senior officials
who can actually make
decisions, or who have ready
access to the Board of
Directors.
Four, engage external counsel
as early as possible to advise
during negotiations
Five, be careful to preserve
privilege for communications
made during negotiations.
What you say (or write)
during settlement may come
back to bite you if settlement
fails.

Can you advise General
Counsel on five practical tips
that can be used for PreArbitration Settlement?
One, have a Dispute
Resolution Policy
Two, do an independent
evaluation as early as possible
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