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Behind the Legal Frustration

by Chinwe Egbunike-Umegbolu

June 2020

Chinwe Egbunike-Umegbolu

Introduction

What has produced this legal frustration? A typical narrative would be the more population of people on earth, the more frustrated the populace will become. In the same vein, the legal system will not be able to contain the demands of the people. Well! Sorry to burst your bubble, though that is not far from the truth, apart from the earth not being able to contain all the frustration. I will leave that for the scientist to decipher. Hence, behind the legal frustration raises a pertinent question on behind the legal frustration in different jurisdiction and the interplay with arbitration in a bid to decongest the courts. This paper focuses on the problems with litigation, the effectiveness of Arbitration in comparison with litigation and concludes by addressing the issue raised in the question relating to the effectiveness of arbitration in comparison to litigation.

Problems with Litigation

Historically, lawyers have been known to be gentlemen because he knows the rights and also can fight for the rights of other people. More so, they are content with the fees paid to them by their clients. However, in recent years some modern day lawyers now use the guerrilla tactics on charging clients . In anticipation that the appearance fee, filings and ceaseless adjournments might arise and the high fees taken from clients will be able to cover the cost spent.

Lending credence to the above is the statement made by Afe Babalola, (SAN ) he elucidated that in the days of yore that lawyers were not well paid. Therefore at the back of the lawyer’s gown, there is a pocket. When the lawyer left the courtroom, the impressed client would walk behind him and put money in the said pocket. However, in this present, day, as depicted above, the reverse is the case. Some lawyers set a high fee in case of unforeseen circumstances. They tout for briefs and ask for exorbitant fees from clients before the hearing of a case. This was one of the many problems associated with litigation in different jurisdiction, which has provoked the use of Alternative Dispute Resolution (ADR). For these reasons, it is fair to say that the legal frustration started as a result of exorbitant cost or fees, court congestion, delay, complex technicalities in the courtroom, cost and among other factors.

Consequently, various jurisdictions like England, USA and Nigeria decided to seek for an antidote and the antidote was Alternative Dispute Resolution. With the interest of their citizens at heart, they ventured into other forms of dispute resolution to reduce the frustration of their citizenry through ADR, this was a chance of creating a win-win dichotomy, this approach saves cost, is less antagonistic and non-adversarial which results to a win-lose approach.

Also, the Holy bible was able to encapsulate the above thinking in Matthew 5:25: “Settle matters quickly with your adversary who is taking you to court. Do it while you are still with him on the way, or he may hand you over to the judge, and you may be thrown into prison. I tell you, you will not get until you have paid the last penny.”

Leveraging on maintaining cordial relationships and saving cost between parties after the disputes were settled are the underlying elements of ADR.

Cost and Delay:

In England, the issues of costs and delay in court led to the countless quests to reform litigation. Nevertheless, ADR became a vital part of the civil justice reform agenda after the high review of civil litigation and lawyer’s activities undertaken by Lord Woolf in 1995.[1] Thus the introduction of the Lord Jackson reform in 2013 was to tackle the proportionality of cost and uphold justice. Hence, the overriding objective was to deal with cases equitably; and to reduce the cost and delay that has been an integral part of litigation inherent in the past system.[2] Prior to this review, it was discovered that smaller claims of the cost of cases were more expensive than the value of the claims. Thus, the question is has this recent restructuring of the court helped reduce the costs of litigation in the UK?

Not really, Leggatt and Williams, has shown that the cost of litigation in the past and present years discouraged a lot of litigants, they stated,’ for the rationale or sensible man of an average income the system is falling short except when his cause is championed by the insurance company, trade union or other such organisation.’[3] They went ahead to elaborate on the problems of court congestion and delay in England by the statistics available in their works. These figures show that there was a significant increase in 1967 in the High court in England, which was congested and the litigants faced substantial delays.[4] For example, in London, there was a waiting time of eight to nine months for a fixed date in the Queen’s Bench Division. Also, outside London because of the priority is given to the Criminal work over half of the Civil actions entered for the trial had to be postponed from one assize to the next and thus a lot of settlements were forced upon the litigants who could not afford the delays or tolerate the old court system.[5]Though this system was later reformed in 1971, and the issue of delay reduced a bit. However, the undeniable fact was that delay still troubled the legal system, aside from the problems mentioned above, the issue of not having enough judges contributed to delay in litigation as well. In the same vein, the issue of cost and an associated factor of delay prompted the statistical analysis for the reform of the final report on civil litigation costs by Lord Jackson in 2013. It would, therefore, hold through that heavy caseloads and delay had been a significant issue in England, and it appears that nothing had significantly changed in 2014. On the other hand, in different jurisdiction like the USA, the Chief justice Earl Warren, summed up the issue of court congestion and delay in the federal courts in America, he posits ‘that the shocking congestion and delay has created a critical issue or difficulty for the constitutional government in the United States of America’.[6]

In support of the above contention is the Nigerian case of Ariori v Muraimo Elemo, which began from October 1960 and took 23years to get to the supreme court of Nigeria.[7] These excessive and regular delays in the court procedures in the Nigeria jurisdiction (I cannot resist the pun) have the same adverse effect on the administration of justice in these countries. Given the preceding, litigation from the above perception has finally run its course because the expectations for litigants from different jurisdiction have been frustrated. Conversely, it appears in recent years, that arbitration can be conducted in a timely fashion, and it is cost-efficient more than litigation. Lending credence to the above is the statistical analysis carried out by the American Bar Association that overall 78% of those surveyed believed that arbitration is faster than litigation and 56% felt that arbitration is more cost-efficient than litigation.[8]Therefore on that basis, it can be said that arbitration is efficient and effective for the simple reason that the arbitral procedures have been unequivocally tailored or streamlined to meet the needs of the parties. This is reflected from the regular changes made by the arbitral bodies to continue to meet the aspiration of its users in the process of dispute resolution. Which is in tune with the distinctive modifications made by the different arbitral institutions in various Jurisdictions. For example, the International Chamber of Commerce-ICC, American Arbitration Association -AAA, London Court of International Arbitration-LCIA International Centre for Dispute Resolution-ICDR, Hong King International Arbitration Centre- HKIAC, Singapore International Arbitration Centre-SIAC, Vienna International Arbitral Centre-Vienna Rules and The Swiss Rules of International Arbitration-Swiss Rules have made a significant amendment to their new rules; by modelling a thoroughly structured set of rules that will lead to a fast track proceeding and expedites growth of international commercial arbitration.[9]

While these dramatic changes are taking place in the arbitral institutions worldwide, it appears that the area of litigation seems to be content to carry on business as usual. For instance, the only remarkable thing that has happened in term of addressing the issues plaguing litigation in England in the last 50 years has probably been the Lord Wolf reform in 1999 which finally resulted in the creation of the landmark document now famously known as the Civil Procedure Rules. Following closely with the success of Lord Woolf, the government decided it was time to pay close attention to the issue of cost that has continued to plague litigation for over 200 years. The Lord Jackson reform has received favourable reviews from practitioner, judges and has been hailed as a timely intervention in an area that has been waiting for government intervention. While the Jackson reform would go a long way to address issues of cost and proportionality, it goes nowhere long enough to match up with the radical changes taking place in the arbitral institutions. Listed below are examples of efforts made by the different institution who are apparently on the verge of giving excellent business practice for proficient users worldwide and this demonstrate that litigation, because it is sponsored by the government, does not have the will and desire to match the changes taking place in the arbitral world.

EFFECTIVENESS OF ARBITRATION IN COMPARISON TO LITIGATION

It is a known fact that the court system is currently clogged with many cases sighting the grievances nursed by various parties. However, arguments have been put forward to illustrate the effectiveness of the arbitral process. In recent years, arbitration which is under the umbrella of Alternative Dispute Resolution (ADR) can be said to be cheaper and efficient because the procedures have been explicitly tailored to meet the needs of the parties. Due to the changes in its processes and features, arbitration has become more streamlined, hence making it a useful mechanism in the reductions of parties’ participation within the national courts. It is noted that the various bodies have been set up to oversee and streamline the processes of the arbitral process in order to make it more effective.

ICC International Court of Arbitration: The ICC is an administrative arm of the ICC with the sole purpose of overseeing the arbitration process. (They are different from the national courts and the judicial system.) A very distinctive change made by the ICC new rules and Swiss rules was the provision allowing a party to apply for an emergency arbitrator to make orders pertaining to conservatory measures that cannot await the constitution of an arbitral tribunal.[1]Consequently, this provision under Article 29 and appendix V empowers a party to appoint an emergency under two days, and this provision has been hailed as a way that the ICC has made it possible to limit the powers of the national court from interfering with the work of the tribunal.[2] Vienna Rules: A very significant change made by the “Vienna rules” in their new rule under Article 45, contains a legal provision for expedited proceedings.[3]

However, this new rule will be effective or applied, only when parties explicitly included them in their arbitration agreement or consequently agree on their application.[4]On the contrary, this new rule is quite different from the emergency provision fast proceedings provided by the ICC. In contrast, the Vienna rules have taken a different approach by developing efficient rules unambiguously aimed at making proceedings more effective. An exceptionally key feature is Section 45 stipulated for sufficient time limits, restriction or limitation of procedural steps, confident that they will not encounter any issues with relating to the applicability of the New York Convention and the use of contemporary means of communications.[5] Amongst all this, Article 45(8) went further to clarify the short time limit of six months for rendering a final award which may be extended by the secretary-general and time limit will not deprive the arbitral tribunal of its jurisdiction. In other words, Article 45 provides a well-balanced set of rules for fast track proceedings without reducing the quality of proceedings and full right to be heard.

These rules are all new and the only answer that litigation might produce is the reform by Lord Woolf that is almost 15 years old. The writer of this paper is of the view that even though that are no many challenging changes made to litigation that does not make litigation inefficient. In this respect, it is averred that arbitration is more contemporary and more in tune with the needs, desire and aspiration of its users than litigation can almost ever hope to be.

The International Centre for Dispute Resolution (ICDR) of the AAA: The ICDR is an International division of the American Arbitration Association. The centre has modified its rules to ensure that efficiency receives adequate attention. They have also organized from time to time certain firm administrative practices and in addition in recent years, introduced several new provisions to enhance the dominance of international arbitration practices.[6] These changes, unlike the ICC rules, which only stipulated for the emergency arbitrator, made ICDR arbitration quite distinctive and distinguish it from other institutional alternatives. These addresses matters such as consolidation, joinder and e-disclosure that the old rules do not have. For instance, parties find the ICDR list method for appointing arbitrators to be the best alternative to resolve the rigidity between respect for party input and the excesses of party appointments. [7] The old rules had no mention of expedited arbitration, unlike the new Article 1(4) rule which contains the appointment of a sole arbitrator and will apply in any case where no disclosed claim or counterclaim exceeds USD$250,000 exclusive interest and costs of arbitration.[8] Hence, the new rule provides for an international expedited procedure and distinguishes itself from the ICC, LCIA and UNICTRAL rule, which contains the above provisions that were discussed above. Additionally, the new rules explain the institution’s listing criteria and other necessary information to facilitate the smooth administration of the arbitral proceedings. Consequently, these new rules which are a step further than the old rules in establishing methods under Article 20(7) to avoid delay and cost, increasing both the arbitrator’s powers and the parties obligations in this regard. These rules also went further to contemplate how parties might consider new technology to increase efficiency and economy of the proceedings.[9]The major factor that distinguishes the new ICDR with the other arbitral institutions is that parties intending to choose the expedited procedures may consider including into in their clause. It is noteworthy that these rules contain provisions for emergency arbitrators, and this will provide an effective and efficient arbitration.

SIAC-Singapore International Arbitration Centre:

Flowing from the above, it is evident that the arbitration rules of other arbitral institutions more gradually comprised the same provisions for the appointment of emergency arbitrators and the granting of emergency relief. The SIAC became the first international arbitral institution based in Asia in July 2010 to adopt and introduced provisions that allowed a party to seek the appointment of an emergency arbitrator explicitly to deal with requests for urgent interim relief before a Tribunal is constituted.[10]Also, they adopted the popular expedited provisions (EP) under Rule 5 of the SIAC 2013 (Which was first introduced in July 2010), which provided that arbitrations conducted in the EP, the award to be made in within Six months. Thus, from August 15th 2014(and since the introduction of EP provisions in 2010) the SIAC has recorded a total of 143EP of which 998 applications have been granted.[11] It is apparent that the above rules serve to improve the effectiveness of the arbitral process.

It is apt to point out that also since the inception of these provisions in July 2010 SIAC has recorded over Thirty-four (34) applications of caseloads, which have been filed with SIAC. Moreover, cases have come from different areas for an instant, in the shipping sector, corporate joint venture disputes, and International trade and general commercial agreements; and have involved numerous jurisdictions, like, Singaporean, Indian, Chinese and Indonesian parties. Also, 2013 saw a new record year for SIAC.[12]Building upon its landmark accomplishment in 2012, new case filings increased by a further 10% from 235 new cases received in 2012 to 259 new cases received in 2013. Additionally, Singapore’s International Arbitration Act was amended in 2012 to provide for the enforceability of the awards and orders issued by emergency arbitrators in Singapore-seated arbitrations and also arbitrations seated outside Singapore.[13] Consequently, this makes Singapore the first jurisdiction worldwide to adopt a law for the enforceability of such awards and orders in Singapore. It is evident from the above study that caseloads handled by SIAC and the number of different jurisdictions it has attracted buttresses the fact that in recent years that the popularity and effectiveness of arbitration have grown due to the flexible way that laws are being reformed on an international basis or level is to provide a speedy alternative means of resolving disputes unlike in the national courts. Hence, this study has shown that the changes made by the arbitral institution like SIAC and other bodies have directed or guided disputants or users to use arbitration to resolve their disputes. Hence, international arbitration in recent years is more secured than litigation because of the above-mentioned reforms and techniques that have been adopted to help resolve conflicts expeditiously and also supports the fact that SIAC’s is one of the fastest-growing arbitral institutions in the world.

LCIA-London Court of International Arbitration: The old rules of the London Court of International Arbitration do not provide for procedures in relation to emergency relief. It is apt to point out that in 2014, the LCIA is currently in the process of finalising the new rules, which currently include an emergency arbitrator provision. Additionally, the new rules also have means for the expedite structure of an arbitral tribunal. A party may submit a written application to the LCIA Court setting grounds to request for the expedited formation of an arbitral tribunal. It is obvious from the new rules mentioned above demonstrates the amount of effort injected into the institutional rules to make arbitration to be dispensed in a more timely and cost-effective manner. This will ensure that users have a faster and trouble-free hearing. It is apt to point out that, the evidence provided above has shown that due to flexibility and efficiency in arbitration, litigation cannot compare nor have any response for the new expedited rule and emergency arbitrators. This is not to ignore that litigation has its own provision for accelerated hearing. Part 28 of the CPR provides for fast track hearing and the effect of this, is that the hearing, and including the passing of judgement has to be completed within a given period in one day.[14]

Conclusion

In conclusion, it is submitted that the introduction of arbitration was to enhance access to justice. Thus, the core purpose of arbitration is to facilitate the resolution of disputes for parties and stakeholders seeking to improve cost and delay associated with litigation by using simple procedure and Provisions by different arbitral Institution that are streamlined within the modern day context. The above provisions by the arbitral institution have given arbitration an advantage over litigation because it curtails the involvement of the court were parties or institution will like to apply for an emergency arbitrator who can hear urgent applications and make interim orders. Hence, it introduced a sense of contract of freedom in arbitration where parties are at liberty to structure their business trades as they desire as long as they designated for arbitration and parties are at liberty to draft their arbitration clause to include mediation if the dispute was not settled in arbitration. This is another flexibility provided by the arbitral institution to encourage parties to select arbitration rather than litigation. Thus given arbitration the much-needed edge over litigation. In order to bring about an expeditious settlement to parties in a dispute. However, in this paper it could be concluded that the process of arbitration achieves the result of bringing out a much cheaper alternative than in litigation. One can only look at the various examples stated above to buttress this argument, thus when it comes to efficacy of the arbitral proceedings and how rapidly matters are enlisted to award, it is convincing that arbitration is a much faster from of dispute resolution.

REFERENCES:

Balbi Lonny, Guerilla Tactics on Getting Paid accessed on 1st June 2020

(Marks 2000)

[1]Mark Baker, James Rogers, Marrion Edge (eds), NortonRoseFulbright (2013) 1 International arbitration report, 24.

[2] The ICC Rules of Arbitration 2012, Article 29.

[3] Vienna Rules of Arbitration 2013, Article 45.

[4] Ibid Article 45(1).

[5] Irene Welser, Overview-Austrian Yearbook on International Arbitration: Efficiency-Today’s Tool in Arbitration Proceedings (Austrian Publication 2014) Chapter II.

[6] Paul Friedland, John Templeman, The New ICDR International Arbitration Rules (White & Case LLP 2014) 1.

[7] Ibid 1.

[8] The International Centre for Dispute Resolution 2012, Article 1(4).

[9] Ibid Article 20(7).

[10] SIAC: Emergency Arbitrator Provisions: An update (2013) accessed 2nd July 2014.

[12] Singapore International Arbitration Center (Annual Report 2013) 4. accessed 2nd July 2014.

[13] SIAC Emergency Arbitrator Provisions: An update (n110).

[14] Civil procedure Rule 1999, Part 28.

[1] Penny Brooker, Mediation Law: Journey through Institutionalism to Juridification (Routledge Taylor &Francis Group 2013) 2.

[2] Stuart Sime, Derek French, Blackstone’sGuide to the Civil Justices Reforms 2013(Oxford University Press 2013) 10-12.

[3] Andrew Leggatt, W.M.H.Williams, Cost, Delay and Other Problems of Contemporary Litigation in England (2013) N15 IALS 2.

[4] Ibid 2.

[5] Ibid.

[6] Julius Miner, William Campbell, Court Congestion: A New Approach (1959) 45 America Bar Association Journal12, 1-5.

[7] [1983]LPELR-SC.80/1981.

[8] Scot Atlas et al, ABA Section of Litigation: Taskforce on ADR Effectiveness Survey on Arbitration [2003] American Bar Association accessed 18th July 2014.

[9] ICC Rules of Arbitration 2012, Article29. Carlo Osi, Understanding Indigenous Dispute Resolution Processes and Western Alternative Dispute Resolution Cultivating Culturally Appropriate Methods in Lieu of Litigation. 31 accessed 27th September 2019

Kevin Ndubuisi Nwosu (eds), Legal Practice Skills & Ethics in Nigeria in Honour of Chief Babatunde Abiodun Ibironke, SAN (2004) Published by DCONconsulting Umegbolu, Chinwe, (2019). "Behind the Legal Frustration!"

Chinwe is currently a PhD student and part-time instructor who facilitates seminar groups in business law. She is a volunteer mentor at the Kingston University London, supporting undergraduate students. She is an experienced claims handler with a demonstrated history of working in the legal services and business industry. Chinwe is skilled in negotiation, mediation, arbitration, immigration law, business and commercial law. Strong finance professional with a Masters degree focused on Dispute Resolution. Her research work has been approved for presentation by the Athens Institute of Education and Research Law Conference, (Athens, Greece) in May 2019.



Additional articles by Chinwe Egbunike-Umegbolu
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