Akakpossa Fils & Associates

HIGH COST OF ARBITRATION

Akakpossfils — Mon, 27 Feb 2023 14:04:22 +0000

High Cost of Arbitration

In some jurisdictions, for example Nigeria, a common law jurisdiction, high cost of arbitration is a major argument against the option of this form of alternative dispute resolution (ADR) when compared with litigation. This high cost of arbitration is not unconnected to the reason for increase in third party funding.

Of a truth, I have some reservations about third party funding; however, I would not attempt to state my reservations now, to avoid digression.

A writer once opined the reason for high cost of arbitration. He stated that, in jurisdictions plagued by frivolous litigations that frustrate the legitimate expectations of commercial parties, the relatively higher cost of arbitration, vis-à-vis litigation appears to be a reasonable quid pro quo. A litigant who is party to an arbitration agreement is less likely to pursue a frivolous or speculative claim, when confronted with the reality of the likely costs involved.¹

Costs must be incurred for the arbitral process to proceed well. These costs include: arbitrator’s fees; costs of securing the arbitration venue; costs of providing transcripts; legal fees of advocates; expert fees; disbursements; and other allowances.² Thus, it could be understood the reason for cost, in arbitration.

However, the increasing costs of arbitration, therefore, imposes a financial barrier to access to justice since it deters poor claimants from prosecuting their claims, and, alternatively, forces poor defendants to settle claims due to the fear of having to pay high costs should they lose.³

Cost effectiveness used to be a major attraction to arbitration in the past, and that made it indeed an alternative to the regular court dispute resolution. It is therefore imperative that arbitration bodies both nationally and internationally should find a way to reduce the cost of arbitration for prospective parties.

I surely believe that this is very possible and realistic.

¹Ajibade Babatunde, ‘Nigeria: Much Ado About The Cost Of Arbitration’ (Mondaq, 2 February 2021) < https://www.mondaq.com/nigeria/trials-amp-appeals-amp-compensation/1031990/much-ado-about-the-cost-of-arbitration-> accessed 18 February 2023

²Muigua K, Settling disputes through arbitration in Kenya, Glenwood Publishers, Nairobi, 2012, 161

³Ng’etich Raphael, ‘The Current Trend of Costs in Arbitration: Implications on Access to
Justice and the Attractiveness of Arbitration’ (2017) Alternative Dispute Resolution 5(2) 2017, 111-129, accessed 18 February 2023

REGULATORY FRAMEWORK OF TELECOMMUNICATION INDUSTRY IN NIGERIA

Akakpossfils — Tue, 18 Oct 2022 03:40:58 +0000

Telecommunication industry in Nigeria is highly regulated for a smooth running and efficient functionality. There are two major laws making up the legal framework regulating the Nigerian Telecommunication sector. They are:
1. Wireless Telegraphy Act
2. Nigerian Communications Act 2003

Wireless Telegraphy Act

The Wireless Telegraphy Act (WTA) was initially enacted in 1961. Having preceded all other extant laws in the sector, the WTA nevertheless continues to provide clarity in relation to the nature of the regulatory management of communications in Nigeria. Essentially, the Act seeks to regulate the licensing, location and operation of wireless telegraphy services in Nigeria. The Act provides Wireless Telegraphy to mean:
…the emitting or receiving, over paths which are not provided by any material substance constructed or arranged for that purpose, of electromagnetic energy of a frequency not exceeding three million megacycles a second, being energy which either-
(a) serves for the conveying of messages, sound or visual images (whether the messages, sound or images are actually received by any person or not), or for the actuation or control of machinery or apparatus; or
(b) is used in connection with the determination of position, bearing or distance, or for the gaining of information as to the presence, absence, position or motion of any object or of any objects of any class
The Act makes it is an offense for a person to establish or use any station for wireless telegraphy, or install or use apparatus for wireless telegraphy except in accordance with a license issued by the Commission. The Act further gives the interpretation of the “Commission” to mean the Nigerian Communications Commission (with regard to telecommunications matters) and the National Broadcasting Commission (with regard to broadcasting matters).

Nigerian Communications Act, 2003

The Nigerian Communications Act 2003 after its successful passage by the two Chambers of the National Assembly, signed into law by Chief Olusegun Obasanjo, GCFR President of the Federal Republic of Nigeria on 8th July, 2003. This birthed a new phase of Telecommunication Industry in Nigeria. The Act repealed the Nigerian Communications Commission Act No. 75, 1992; the Nigerian Communications Commissions (Amendment) Act No. 30, 1998 and the Nigerian Telecommunications and Postal Offenses Act No. 21 of 1995 as amended.
The objectives of this Act which as contained in the first Section of the Act, has sufficiently and clearly shown the regulatory tentacles of the Act over the Telecommunication Industry in Nigeria. It provides :
The primary object of this Act is to create and provide a regulatory framework for the Nigerian communications industry and all matters related thereto and for that purpose and without detracting from the generality of the foregoing, specifically to—
(a)s promote the implementation of the national communications or, telecommunications policy as may from time to time be modified and amended;
(b) establish a regulatory framework for the Nigerian communications industry and for this purpose to create an effective, impartial and independent regulatory authority;
(c) promote the, provision of modem, universal, efficient, reliable, affordable and easily accessible communications services and the widest range thereof throughout Nigeria;
(d) encourage local and foreign investments in the Nigerian communications industry and the introduction of innovative services and practices in the industry in accordance with international best practices and trends;
(e) ensure fair competition ill all sectors of the Nigerian communications industry and also encourage participation of Nigerians in the ownership, control and management of communications companies and organisations;
(f) encourage the development of a communications manufacturing and supply sector within the Nigerian economy and also encourage effective research and development efforts by all communications industry practitioners;
(g) protect the rights and interest of service providers and consumers within Nigeria;
(h) ensure that the needs of the disabled and elderly persons are taken into consideration in the provision of communications services; and
(i) ensure an efficient management including planning, coordination, allocation, assignment, registration, monitoring and use of scarce national resources in the communications sub-sector, including but not limited to frequency spectrum, numbers and electronic addresses, and also promote and safeguard national interests, safety and security in the use of the said scarce national resources.
Section 3(1) of the Act further provides for establishment of a Commission to be responsible as the hand of the Act to carry out the regulatory duties of the industry. It provides:
There is established a Commission to be known as the Nigerian Communications Commission with responsibility for the regulation of the communications sector in Nigeria.

Telecommunication industry in Nigeria is highly regulated for a smooth running and efficient functionality.

The consonance of the above two sections has clearly depicted that the Nigerian Communications Act of 2003 is the primary and major law regulating the affairs of the Communication Sector in Nigeria. The Act further provides:

(1) The Commission may make and publish regulations for all or any of the following issues:
(a) written authorizations, permits, assignments and licenses granted or issued under this Act;
(b) assignment of rights to the spectrum or numbers under Chapter VIII, including mechanisms for rate-based assignment;
(c) any fees, charges, rates or fines to be imposed pursuant to or under this Act or its subsidiary legislation;
(d) a system of universal service provision under Chapter VII, including but not limited to the quality of service standards;
(e) communications and related offenses and penalties;
(f) any matter for which this Act makes express provision; and
(g) such other matters as are necessary for giving full effect to the provisions of this Act and for their due administration.
(2) The Commission may also make and publish guidelines on any matter for which this Act makes express provision and such other matters as are necessary for giving full effect to the provisions of this Act and for their due administration

HOW TO OBTAIN TEMPORARY WORK PERMIT IN NIGERIA

Akakpossfils — Thu, 18 Aug 2022 03:00:23 +0000

Temporary Work Permit also referred to as TWP is a short term permit usually issued to an expatriate with special skills through the application of a Corporate entity who is in need of the expertise or skill of such expatriate.

TWP is usually issued by the Nigerian immigration service to the applying company with the name and details of the expatriate being invited. The approval letter being a temporary one is usually for two months.

The following documents are required for the application and approval of TWP

1. Application letter in the letterhead of the applying company addressed to the Comptroller General of Nigerian Immigration Service
2. Company Profile
3. Certificate of Incorporation of applying company
4. Memorandum and Articles of Association of the Company
5. CAC 2 and 7 or CAC 1.1 or Status report of the Company as the case may be (The applicability of the documents here on this item is dependent on when the Company was incorporated by the Corporate Affairs Commission. CAC 2, 7 and 1.1 are no longer issued for new companies since the coming into the existence of the new Companies and Allied Matters Act 2020).
6. International Passport of the invited expatriate.

It should be noted that this is the first stage of the whole process, as at this stage, Temporary Work Permit (Pre-Approval Letter) is issued to enable the invited expatriate to complete the application at the Nigerian Embassy where the invited expatriate resides and has chosen.

LAW AND GOVERNMENT REGULATIONS ON BUSINESSES IN NIGERIA

Akakpossfils — Mon, 18 Jul 2022 01:39:55 +0000

INTRODUCTION

For every society to maintain orderliness and organization in a particular sector there is a need for a set of rules and directives. This set of rules and directives made and enforced by an authority is called a Regulation. The authority responsible for making and enforcing these regulations are simply called – Regulators. Pertaining to our subject matter of discourse, our focus is on Business Regulations. We will not be focusing on particular regulators or regulations. The brevity of this write-up would not permit us to deal extensively with the regulators, but it would be a qualitative discourse.

THE HIGHLIGHT OF REGULATORS IN BUSINESS OPERATIONS IN NIGERIA

In Nigeria, there are different regulators responsible for various aspects of business operations particularly relating to entrepreneurs and MSMEs. The following regulators are generally the most active regulators in the business industry of Nigeria:

Corporate Affairs Commission (CAC)
Federal Inland Revenue Service (FIRS)
State Internal Revenue Service (IRS)
National Agency for Food and Drug Administration and Control (NAFDAC)
Standard Organization of Nigeria (SON)
Nigerian Communications Commission (NCC)
Nigeria Customs Service (NCS)
Ministry of Industry, Trade and Investment – Trademarks, Patents, and Designs
Nigeria Copyright Commission (NCC) etc.

Please note that as a business owner or an entrepreneur, you are likely to have dealings with a minimum of 4 Regulators in your field. For example, when you decide to engage in the business of Pre-Packaged Food Manufacturing. The first point of the call is to register your business with Corporate Affairs Commission (CAC). Before you begin to manufacture for sale, you need to register with NAFDAC. One of the requirements to register with NAFDAC is Evidence of Registration of Brand Name with the Trademark Registry in the Ministry of Industry, Trade and Investment. After the commencement of business, the business and business owners begin to pay applicable taxes to the FIRS and SIRS respectively. From this above, the business owner has had cause to deal with 5 regulators over one company.

Even though business owners may not be lawyers and are not expected to know all these laws, there are basic principles of business laws that an entrepreneur or a business owner should know to avoid some business calamities.

ENACTED LAWS AND REGULATIONS

Every regulator in the business industry is a child of one law or the other. These parent laws provide for various rules and regulations to guide the operation and workings of its sectors. The laws further empower each Regulatory Agency (regulator) to make regulations to control and direct the affairs of players in the industry.

For example, National Agency for Food and Drug Administration and Control Act (NAFDAC Act) summarises the aim of the agency as follows: to among others, regulate and control the importation, exportation, manufacture, advertisement, distribution, sale, and use of food, drugs, cosmetics, medical devices, bottled water, and chemicals.

As a business owner, it is very imperative to know the basic principles of law or seek legal advice concerning it. This basic knowledge should center on the following:

Pre-Incorporation and Post-Incorporation Laws
Tax Laws

iii. Employment and Labour Law

Intellectual Property Law

Licensing, Approvals, Permits, Prohibition Regulations, etc.

One may not know how crucial knowledge is until one’s business is specifically affected. Imagine a business owner who saw some goods online, paid, and bought them but could not bring them into the country because the goods fall under Prohibited List.

So, it is very critical that an entrepreneur seeks professional guidance regarding prevailing laws and regulations in any area of business he/she intends to enter or invest in.

CONSEQUENCE AND PENALTY

Penalties for contravention against provisions of Laws and Regulations differ from one Regulator to the other and also from one offense to another. Irrespective of which contravention or Regulator, the penalties include the following:

Fine
Imprisonment

iii. Forfeiture etc.

GENERAL LAWS AND PRINCIPLES IN CONTRACTUAL BUSINESS RELATIONSHIPS

Akakpossfils — Wed, 01 Jun 2022 11:22:23 +0000

As an entrepreneur or a business owner, it is important to note the following as business transaction is concerned:

When entering into a contract, the business owner should enter such a contract in the name of his/her business. This is to forestall situations in which the business owner becomes liable for the acts of the company. However, when a business is yet to be registered, the owner should not enter into a contract in such a name as such a contract becomes unenforceable. Only a registered business has the capacity to enter and enforce a contract.
Also, in cases where the other party in a contract is a corporate entity, it is essential that you verify the registration status of such company, as it is commonplace to see persons that carry out business transactions with unregistered names, enter an agreement in such names. If it happens that you enter into a contract with an unregistered organization, enforcing such a contract on the organization will usually pose some challenges and difficulties.

iii. There are generally two forms of contract: Oral Contract and Written Contract. It should be noted that the two are enforceable in law. Nevertheless, it is advisable that you reduce your agreement into writing either by yourself (even though not always expedient and wise) or through a lawyer. A written agreement is easily proved in court in the event of disagreement or dispute between parties. In your business engagements, it is important you avoid handshake agreements or gentleman agreements.

In any transaction that involves an exchange of money, I will further advise that the handing over to the other party should be in a form that is traceable and evidential – either through the issuance of a cheque, bank deposit, or electronic transfer. In a situation where the money is paid in cash, the receiver should be required to acknowledge the receipt in writing. It is advised that cash payment without proof should be completely avoided. Aside from issues of denial of receipt of such money, there are many issues that can come up that would warrant proof. There is a case we handled recently, where a man collected some money but died before the execution of the business transaction. The family of the deceased was not willing to release the money to the partners as no evidence to prove it.

Also note that it is unwise to sign an agreement that you have not read through and understood or given to your lawyer to study and advise you appropriately. Very recently, social media was flooded with the news about an artist who did not read her contract (or did not read well) before she signed. It happened that she already mortgaged her name and identity. Many have fallen into this trap, many others are still falling, and more will still fall into the same trap.

vii. Exposing your names, ideas, and any of your intellectual property without registration and/or protection usually leads to sour regrets. Imagine you have started building customers and clientele around your name or logo for about 3 years. Then you decide to register the same but discover an existing or similar one to it.

viii. Protection of your Intellectual Property (IP) through copyright, trademark, design, and patent, whichever is appropriate, is very crucial. These protections are available to protect your Intellectual Property against infringement. Many entrepreneurs in their desperate search for partners or investors tend to expose all their ideas, works, and products. Unfortunately, some would-be investors reject their offer and turn around stealing ideas, work, or products. Irrespective of how cheated the owner of the IP might feel, if not registered it would be very unlikely to succeed if he/she sues for infringement.

x. Irrespective of your kind of business, whether Micro, Small or Medium, there is a need for you to retain a lawyer for yourself. What a lawyer’s advice will save you will be nothing compared to what you could lose if you make the wrongful step on the side of the lawx