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Published online by Cambridge University Press: 05 August 2020
Nigeria's Court of Appeal held in Shell v Federal Inland Revenue Service (Shell v FIRS) that only Nigerian enrolled legal practitioners can sign processes for arbitration proceedings in Nigeria. Foreign qualified legal practitioners (FQLP) not enrolled in Nigeria are excluded. Arguably, this limitation extends to the conduct of the parties’ cases and excludes FQLP from appointment as arbitrators where the arbitration agreement specifies that arbitrators be legal practitioners. Shell v FIRS however, contrasts with Stabilini Visinoni v Mallinson, in which the same Court of Appeal had emphasized the flexibility of the arbitral process (which typifies judicial policy in any arbitration-friendly jurisdiction), particularly recognizing that arbitration practice is open to lawyers and non-lawyers alike. Consequently, this note recommends that Nigeria's Arbitration Act be amended to allow for representation by “persons” of the parties’ choice, mirroring the IBA Guidelines on Party Representation in International Arbitration 2013 and article 5 of the UNCITRAL Arbitration Rules 2010.
LLM, LLB (hons) (Nigeria); BL. Doctoral researcher, Faculty of Law, University of Nigeria. Special thanks to Professor Edwin Obimma Ezike FCArb (who supervised an earlier version of this work) and the anonymous reviewers, for their insightful comments.
1 CA/A/208/2012 (31 August 2016). The judgment is available at: <https://www.dropbox.com/s/li75oiwwzn3rkjd/SHELL%203%20ORS%20v%20FIRS%20%28CA-A-208-2012%29%20JUDGMENT.pdf?dI=0> (last accessed 11 June 2020).
2 Cap L11 Laws of the Federation of Nigeria (LFN) 2004.
3 See for instance, Asouzu, AA “Arbitration and judicial powers in Nigeria” (2001) 18/6 Journal of International Arbitration 617 at 625CrossRefGoogle Scholar, where the issue was examined to the effect that: “In light of the law and the international arbitral obligations of Nigeria [citing International Centre for Settlement of Investment Disputes Convention and the Headquarters Agreement between the Asian African Legal Consultative Committee and Nigeria] with respect to the Lagos Regional Centre for International Commercial Arbitration (LRCICA), any person, Nigerian or non-Nigerian, legal practitioner or non-legal practitioner can act or be instructed to act as a party's representative or assistant before an arbitral tribunal in Nigeria”.
4 Arbitration and Conciliation Act, cap A18 LFN 2004, first sched (Arbitration Rules).
5 Available at: <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&uact=8&ved=2ahUKEwi9nIqzwITkAhVMSBUIHeKvCM0QFjADegQIAxAC&url=https%3A%2F%2Fwww.ibanet.org%2FDocument%2FDefault.aspx%3FDocumentUid%3D6F0C57D7-E7A0-43AF-B76E-714D9FE74D7F&usg=AOvVaw1NEoA364TUO4JGahHWk3UR> (last accessed 11 June 2020).
6 For more on the aspect of the judgment relating to the arbitrability of tax disputes, see: Umeche, C “Arbitrability of tax disputes in Nigeria” (2017) 33/3 Arbitration International 497CrossRefGoogle Scholar; and Obayemi, O “Jurisdiction and arbitration of tax disputes in Nigeria” (2018) 9/1 Gravitas Review of Business and Property Law 120Google Scholar.
7 Shell v FIRS, above at note 1 at 17.
8 Citing AG Australia v R & Boilermakers Society of Australia [1957] 2 All ER 45 at 49.
9 Citing SEC v Kasunmu [2009] 10 NWLR (pt 1150) 509 at 522.
10 Citing Oketade v Adewunmi [2010] 8 NWLR (pt 1195) 63 at 70.
11 Shell v FIRS, above at note 1 at 19–20.
12 [1989] 2 NWLR (pt 105) 494.
13 Id at 532.
14 Constitution of the Federal Republic of Nigeria 1999 (as amended).
15 “Every person who is charged with a criminal offence shall be entitled to … (c) defend himself in person or by legal practitioners of his own choice”.
16 Ibid.
17 See Awolowo v The Federal Minister of Internal Affairs [1966] ANLR 171. See generally, Tobi, N “Right to counsel in Nigeria” (1980) 5/iii International Legal Practitioner 75Google Scholar.
18 See Okafor v Nweke [2007] 10 NWLR (pt 1043) 521.
19 Id at 531.
20 Arbitration Rules, art 4.
21 LPA, sec 8(5): “Legal practitioners appearing before any court, tribunal or person exercising jurisdiction conferred by law to hear and determine any matter (including an arbitrator) shall take precedence among themselves according to the table of precedence set out in the First Schedule to this Act”.
22 The court's decision has been the subject of severe criticism. See Sashore, O “Representation of arbitration proceedings: The recent trend in Shell v FIRS” (2016) 1/1 Miyetti Quarterly Law Review 11Google Scholar.
23 See Oputa JSC in Adegoke Motors v Adesanya [1989] 5 SCNJ 80.
24 See Asouzu “Arbitration and judicial powers”, above at note 3 at 626.
25 See Sashore “Representation of arbitration”, above at note 22 at 27–28.
26 Above at note 18 at 531.
27 Singapore Legal Profession Act, cap 161 (2009), sec 35. Contrast with Builders Federal (Hong Kong) Ltd & Joseph Gartner & Co v Turner (East Asia) Pte Ltd [1988] 2 MLJ 280, which was decided on similar terms to Shell v FIRS, to Singapore's disadvantage, thus necessitating the amendment of Singapore's Legal Profession Act. See further, Born, GB International Commercial Arbitration (2nd ed, vol III, 2014, Kluwer Law International) at 2838Google Scholar.
28 Malaysia Legal Profession (Amendment) Act 2012, sec 37(a) and (b).
29 German Code of Civil Procedure 2005, sec 1042(2).
30 [2014] 12 NWLR (pt 1420) 134.
31 See id at 171–72.
32 Id at 172.
33 See Adegoke Motors, above at note 23 at 92 for what constitutes the binding aspect of a judgment.
34 Available at: <https://www.uncitral.org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf> (last accessed 11 June 2020). See Asouzu, A “The UN, the UNCITRAL Model Arbitration Law and the Lex Arbitri of Nigeria” (2000) 17/5 Journal of International Arbitration 85 at 99–100CrossRefGoogle Scholar.
35 UNCITRAL Arbitration Rules 1976, art 4.
36 Arbitration Rules, art 4.
37 Guideline 3 reads: “Party Representative or Representative means any person, including a party's employee, who appears in an arbitration on behalf of a party and makes submissions, arguments, or representations to the Arbitral Tribunal on behalf of such party, other than in the capacity as a Witness or Expert, and whether or not legally qualified or admitted to a Domestic Bar”. See above at note 5.
38 See for instance, Sashore “Representation of arbitration”, above at note 22.
39 Shell v FIRS, above at note 1 at 19. See ACA, secs 15, 43 and 53. Under ACA, sec 53, parties to international arbitration may refer their dispute to arbitration in accordance with the Arbitration Rules. In this case, only Nigerian enrolled legal practitioners can represent them.
40 Okafor v Nweke, above at note 18 at 521.
41 Above at note 30.
42 At least in international arbitration, considering that art 4 of the Arbitration Rules expressly allows only Nigerian, enrolled legal practitioners to provide representation in domestic arbitration proceedings.
43 Indeed, in Mutual Life & General Insurance Ltd v Iheme [2014] 1 NWLR (pt 1389) 670, Augie JCA had stated (at 677): “The truth of the matter is that there is no distinction in the eyes of the law between an Arbitrator, who is a legal practitioner, and one, who is a layman”. See Onyema, E “Selection of arbitrators in international arbitration” (2005) 8/2 International Arbitration Law Review 45Google Scholar for the qualities required of arbitrators, applicable to both lawyers and non-lawyers.
44 See Redfern, A and Hunter, M Law and Practice of International Commercial Arbitration (3rd ed, 1999, Sweet & Maxwell), para 4–39Google Scholar. In Sacheri v Robotto [1991] 16 YBCA 156 at 156–57, the arbitrators were all technically skilled but lacked legal or arbitration training. They relied on a lawyer to draft the award for them. The Italian Corte de Cassation set aside the award on 7 June 1989 for this reason. See also P v Q [2017] EWHC 148 (comm), [2017] EWHC 194 (comm). See further: Hulley Enterprises Limited (Cyprus) v The Russian Federation (PCA case no AA 226), Yukos Universal Limited (Isle of Man) v The Russian Federation (PCA case no AA 227) and Veteran Petroleum Limited (Cyprus) v The Russian Federation (PCA case no AA 228), awards of 18 July 2014. See also, Onyema, E International Commercial Arbitration and the Arbitrator's Contract (2010, Routledge) at 66CrossRefGoogle Scholar.
45 Redfern and Hunter Law and Practice, above at note 44, para 4–40. See further, Klug, M and Dutson, S “The role of the legal profession in arbitration” (1999) 8/3 Arbitration and Dispute Resolution Law Journal 208Google Scholar.
46 Ibid.
47 Ibid.
48 Rahcassi Shipping Company SA v Blue Star Line Ltd [1967] 3 ALL ER 301; Pando Compania Naviera SA v Filmore SAS [1975] 1 QB 742.
49 See ME Usoro “Current developments in international trade in legal services” (paper presented at the seventh annual business law conference of the Nigerian Bar Association Section on Business Law, Lagos 17–19 June 2013) at 7, describing this as the “follow your client approach”.
50 [1999] 8 NWLR (pt 613) 61 at 78.
51 Shell v FIRS, above at note 1 at 20.
52 This is clearly the case with domestic arbitration.
53 See above at note 30.