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ALTERNATIVE DISPUTE RESOLUTION  

(COURSE CONTENTS)

The term Alternative Dispute Resolution (ADR) refers to the different methods and procedures used in resolving dispute either as alternatives to the traditional dispute resolution mechanism of the court system. In some cases, it is supplementary to such mechanisms. ADR comprises various approaches for resolving disputes in a non-confrontational way, ranging from negotiation between the two parties, a multi-party negotiation, through mediation, consensus building, to arbitration and adjudication.

 

ADR can also refer to the entire gamut of non-litigatory process. This could include facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process. It could extend to arbitration systems or mini-trials that look and feel very much like a courtroom process.

 

This course material will examine the concept of ADR and the various range of ADR methods by which disputes can be resolved, the kinds of disputes that can be resolved through ADR, the benefits of referring disputes to ADR and limitations to the ADR.

 

The course will provide the basic knowledge of the concept of ADR. It examines the concept of ADR as an alternative to the conventional means of settling disputes in Nigeria; litigation. The course seeks to make students understand the different methods by which disputes can be resolved, the kinds of disputes that can be resolved through ADR, the benefits of referring disputes to ADR and limitations to the ADR process. In essence the course aims to challenge students to appreciate the nature of ADR. In particular to: examine applications of ADR techniques, provide students with a comparison with court-based dispute resolution.

 

In specific terms, the following course outline are the various topics to be covered in this Course.

 

PART A: ARBITRATION

 

1. INTRODUCTION

Alternative Dispute Resolution (ADR)

Some forms of ADR

The Purpose of ADR

Advantages of ADR

Limitations of ADR

 

2. MEDIATION

Development of Mediation

Mediation defined

Features of Mediation

When Mediation will not be an option

Advantages of Mediation

Shortcomings of Mediation Procedure

Mediation and Litigation

 

3. CONCILIATION

Conciliation Defined

Conciliation Agreement

Types of Dispute for Conciliation

 

4. NATURE OF ARBITRATION

Arbitration Defined

Historical Perspective of Arbitration

Features of Arbitration

Types of Arbitration

Forms of Arbitration

How Arbitration Arises

Advantages of Arbitration

Limitations of Arbitration

 

5. SOURCES OF ARBITRATION LAW (NIGERIAN ARBITRATION LAWS AND RULES)

Statutes

Common law and doctrine of equity

Trade Usages

Development of Arbitration Legislation in Nigeria

UNCITRAL Arbitration rules

UNCITRAL model laws of International Commercial Arbitration

 

6. INTRODUCTION TO ARBITRATION

Alternative Dispute Resolution Mechanisms

Definition of Arbitration

Features of Arbitration

Arbitration compared with Court/Litigation

Arbitral Institution

Applicable Laws

 

7. ARBITRATION AGREEMENT

Validity of Arbitration Agreement

Autonomy and Independence of an Arbitration Clause

Content of Arbitration Agreement

(a) Capacities of parties to engage arbitration

(b) The Reference

(c) The Arbitrators

 

8. ARBITRATION INSTITUTIONS

Domestic Arbitration Institutions

(a) Chartered Institute of Arbitration

(b) Nigerian Branch of Chartered Institute of Arbitration

(c) Association of Construction Arbitration

(d) Other professional Institutions

 

9. M E A N I N G AND SCOPE OF NEGOTIATION

Definition of Negotiation

What is Negotiation?

Determining your BATNA

Methods of Negotiation

  1. Soft Method of Negotiation

  2. Hard Method of Negotiation

  3. Firm Method of Negotiation

 

10. NEGOTIATION STRATEGIES

Negotiation Strategies

(a) Competitive Approach

(b) Collaborative Approach

Negotiation Tactics

(a) Promise

(b) Bloated Negotiation Team

(c) Threat

(d) Extreme initial position

(e) Psychological plot

(f) Deadline

(g) Lack of Authority

(h) Nibble

 

11. SOURCES OF POWER IN NEGOTIATION

Competition

Legitimacy

Information

Precedent

Time

Investment

 

12. MECHANISMS FOR THE PRACTICE OF ADR

Multi-door Courthouse

(a) Objectives of Multi-door Courthouse

(b) Options at the Multi-door Court house

(c) Merit of Multi-door Courthouse

(d) Practice and Procedure at the Multi-door Courthouse

Citizens Mediation Center

 

13. INTERNATIONAL AND DOMESTIC ARBITRATION

The Meaning of “International”

The Meaning of “Commercial”

Domestic Arbitration

International Arbitration

(a) Main Features of International Arbitration

(b) Distinguishing “International” and “Domestic” Arbitration

 

14. ARBITRABILITY

Arbitrability Defined

Non‐Arbitrable Issues

Arbitrable Issues

 

15. INTERNATIONAL COMMERCIAL ARBITRATION

International Commercial Arbitration

(a) Reasons for Choosing International Commercial Arbitration

(b) Institutional vs. Ad Hoc

(c) State vs. Private Parties

Basic Principles of International Commercial Arbitration Law

 

PART B: PROCEDURE IN ARBITRATION

 

16. ARBITRATION AGREEMENT AND SUBMISSION CLAUSE

Definition of Arbitration Agreement

Categories of Arbitration Agreements

Enforcement of the Arbitration Agreements

The Parties to an Arbitration Agreement

Doctrine of Separability

 

17. LAW GOVERNING ARBITRATION PROCEEDINGS

What is Lex Arbitri?

(a) The Jurisdictional Theory

(b) Contractual Theory

(c) Party Autonomy

Content of Lex Arbitri

The Seat theory

Delocalisation

 

18. ESTABLISHMENT OF ARBITRAL TRIBUNAL

Commencement of an Arbitration

Appointment of Arbitrators

Qualities of International Arbitrators

Challenge and Replacement of Arbitrators

 

19. ORGANISATION OF ARBITRAL TRIBUNAL

Scheduling Hearing

Administrative Aspect

Fixing Fees

 

PART C: CONDUCT OF ARBITRAL PROCEEDINGS

 

20. COMMENCEMENT PROCEDURE

Set of Arbitration Rules

Language of Proceedings

Place of Arbitration

Administrative Service

Cost of Arbitration

 

21. COMMENCEMENT OF THE ARBITRAL PROCEEDINGS

Confidentiality in arbitration

Mode of communication

Written submissions and evidence

Documentary evidence

Physical evidence other than documents

Witnesses

Hearings

 

22. ROLE OF THE NATIONAL COURT

Approach of National Court to the enforcement of arbitration agreement

Approach of National Court towards breach of an arbitration agreement

Determining whether a dispute is arbitrable or not

Jurisdiction and Competence

 

PART D: ARBITRAL AWARD

 

23. MAKING Of AWARD

What is an arbitral award?

Nomenclature

Legal requirements

Form

 

24. RECOURSE AGAINST THE AWARD

Background

Transnational Commercial Arbitration: A Definitional Approach

Application for Setting Aside as Exclusive Recourse

Grounds for Setting Aside

 

25. RECOGNITION AND ENFORCEMENT OF THE AWARD

Uniformity in the Treatment of all awards irrespective of country of origin

Procedural conditions of recognition and enforcement

 

26. GROUNDS FOR REFUSAL

Requirements to be fulfilled by petitioner

(a) Which Document?

(b) Authenticatication Award or Certified Copy

(c) Original Arbitration Agreement or Certified Copy

(d) At the Time of the Application

(e) Translations

Grounds for Refusal ‐ in General

(a) No Review on the Merit

(b) Burden for Respondent of Proving the Exhaustive Grounds

(c) Exhaustive Grounds for Refusal of Recognition and Enforcement

(d) Narrow Interpretation of the Grounds for Refusal

(e) Limited Discretionary Power to Enforce in the Presence of Grounds for Refusal

Grounds for Refusal to be Proven by Respondent

(a) Incapacity of Party and Invalidity of Arbitration Agreement

(b) Incapacity of Party

(c) Invalidity of Arbitration Agreement

(d) Lack of Notice and Due Process Violations

(e) Outside or Beyond the Scope of the Arbitration Agreement

(f) Irregularities in the Composition of the Arbitral Tribunal or the Arbitration Procedure

(g) Award Not Binding, Set Aside or Suspended

Grounds for Refusal to be raised by the Court Ex officio

(a) Not Arbitrable

(b) Contrary to Public Policy