Lagos-based disputes lawyer, Babatunde Ajibade SAN, partner at SPA Ajibade, discusses the increasing complexity of commercial disputes and the importance of effective communication in the field of dispute resolution.
What is your current role in dispute resolution?
My current role in dispute resolution is more often than not as counsel, either in litigation or in arbitration. I have sat as a sole arbitrator once and I’m looking to develop that aspect of my practice further, but for now my predominant experience is as counsel. So, I would describe myself as an advisor.
I specialise in commercial dispute resolution across a relatively broad spectrum – company law disputes, insolvency, banking, joint ventures, aviation, investments, insurance, common law actions for breach contract and tort, amongst others.
I have wanted to be a litigator for as long as I can remember. I enjoy pitting my wits against adversaries in court or before a tribunal. I also get a sense of satisfaction from achieving results for my clients, especially when their cause is just (which is not always the case!).
Which processes do you use most frequently?
The process I use most frequently is litigation. I rarely use a combination of methods, although often times, litigation veers into arbitration where a court action has been commenced in breach of a prior agreement to arbitrate. I would not describe this as a combination of methods however.
How is the market currently addressing parties’ needs?
I think there is a need to understand the critical difference that exists between the various methods of dispute resolution in order to determine whether there can be a fair answer to this question.
As you may be aware, aside from litigation, all other forms of dispute resolution require the consent of the parties in one form or another or to some degree or the other. It is only with litigation that a party can be compelled to participate in dispute resolution against his/her will and irrespective of his/her wishes in the matter. This is a fundamental difference.
The other methods that are compared with litigation such as arbitration, mediation and conciliation, all require that the parties agree to employ those methods, either before or after a dispute has arisen. For this reason, it is often the case that these other options are never really up for consideration once one party has filed an action and the adversarial process has been engaged.
With the increasing popularity of arbitration, mediation and conciliation however, as a means of resolving commercial disputes – and the increased awareness amongst practitioners that the easiest way to get disputes resolved by these means is by the negotiation of appropriate dispute resolution clauses in agreements prior to the existence of a dispute – the tide may be slowly tilting in favour of these alternatives to litigation. It will still take a while before this tide becomes a flood though.
How do you think the dispute resolution processes are likely to change in the future?
I think dispute resolution processes are likely to become increasingly complicated at a particular level, yet simpler at another level, and I don’t think this is such a bad thing.
I think the mechanism that is growing and that ought to grow more is the early case assessment process that enables a judicial administrator determine the most efficient dispute resolution stream that a particular dispute should enter. It could be a small claims court, a specialist technology court, a construction adjudication process, etc. It’s only in this way that you will get horses for courses and also be sure that the judicial officers are developing the necessary expertise to deal with the matters that come before them more and more efficiently and quickly.
The rise of arbitration and alternative dispute resolution processes and the sophistication of dispute resolution clauses is also evidence of this trend. Nowadays, a properly thought through dispute resolution clause is negotiated and drawn up with a view to ensuring that a tribunal or individual with the appropriate level of knowledge or expertise is engaged to adjudicate over any eventual dispute.
How could an improved cross-cultural dialogue promote different forms of dispute resolution and improve access to justice?
An increasing cross-cultural dialogue is essential and so is the establishment and agreement to the existence of basic and fundamental rules, such as the right to be heard in one’s own defence and the fact that a person cannot be a judge in his or her own case.
Perhaps of equal or greater importance is the need to ensure that national judicial systems respect the principles of comity and do not engage in competition with each other to exercise influence or jurisdiction over disputes that have an international element.
There ought to be mutual respect and confidence in each other’s sense of justice and a willingness to defer to another’s exercise of jurisdiction in appropriate cases where such exercise of jurisdiction has been made manifest.
Interview by Natasha Mellersh.
Babatunde Ajibade SAN (Special Advocate of Nigeria), the Managing Partner of S. P. A. Ajibade & Co. based in Lagos, Nigeria, has been involved in all aspects of corporate and commercial dispute resolution in Nigeria, and has expertise in litigation involving the recognition and enforcement of foreign judgments, banking law, intra-company shareholder disputes, as well as insolvency and insurance litigation.