Implementing CCJ’s Arbitration Agreements may be Impossible – Professor Douajni

Ecowas Court

Professor Gaston Kenfack Douajni, a former president of the United Nations Commission on International Trade Law (UNCITRAL) said implementing CCJ’s arbitration agreements will be “virtually impossible, especially as the court’s arbitration system can only be institutional arbitration. Professor Douajni said this as the keynote speaker, at the opening ceremony of the 2017/2018 legal year of The Community Court of Justice (CCJ) of the Economic Community of West African States (ECOWAS).

Professor Douajni spoke in response to the indication made by the President of the Court, Justice Jerome Traore  that the court  is ready to extend its jurisdiction towards arbitration as already provided for under Article 9(5) of its Protocol. He said the court has powers which enables it to be described variously as a classical international court mandated to settle inter-state disputes, or as a community court of integration, or as the administrative court of an international organisation or the human rights court of the sub-region.

Highlighting the challenges that may hinder the arbitration exercise, Professor Douajni  defined arbitration as consisting of “settlement of disputes, including commercial disputes, mainly by private persons, where the arbitrators are appointed on the basis of an arbitration agreement in the form of an arbitration clause or a compromise agreement.”

He said in view of this definition, it is difficult to implement the provisions in Article 9(5) of the 2005 Supplementary Protocol on CCJ that provided that “Pending the establishment of the Arbitration Tribunal provided for under Article 16 of the Treaty, the court shall have power to act as arbitrator for the purpose of Article 16 of the Treaty.”

Article 16 (1) provides that, “there is hereby established an Arbitration Tribunal of the Community, and (2) the status, composition, powers, procedure and other issues concerning the Arbitration Tribunal shall be as set out in a protocol relating thereto.”

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Douajni said what this means is that for the court to act as an arbitral tribunal, the parties must, under an arbitration clause or an arbitration agreement, seize it for that purpose.

He however cautioned that even if the court had been asked to act as an arbitral tribunal, it should be aware of the law applicable to the arbitral proceedings and the law applicable to the substance of the dispute before it.

“These details are not available today, especially since the protocol on the court’s arbitration system, as provided for under Article 16(2) of the ECOWAS Treaty has not yet been adopted. Perhaps it has not yet been drafted.

He suggested that the Arbitration Protocol relating to arbitral powers of the CCJ should clearly define the arbitration agreement and pay special attention to the rules relating to the constitution of the arbitral tribunal as well as those relating to the arbitration independence and impartiality of the arbitrator.

He added that the protocol should also include provisions to enable the control of the period and cost of arbitration of the disputes submitted before the CCJ.

To this end, Prof. Douajni suggested that the CCJ, in carrying out its jurisdictional function on arbitration can only intervene at the level of control over the arbitral awards concerning the pronouncements made in this regard. He said this can be done by examining the legality of the said awards, during the proceedings seeking their annulment, as may be filed thereafter.

Legal experts and other stakeholders in the justice system have all at one time or the other advocated proper utilisation of alternative dispute resolution mechanisms which include arbitration and mediation to decongest cases before courts.

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Further suggestions on what the court should do

The Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN) in his goodwill message acknowledged that the existence of a credible alternative means of dispute resolution is key to foreign investment decisions and also a catalyst for commercial growth.

“It is indeed a novel idea and most welcome development that the CCJ is seeking to promote alternative dispute resolution which is for the benefit of the entire ECOWAS community,” he said.

Represented by the Solicitor-General of the Federation, Dayo Apata, the AGF advised the CCJ to partner with the Regional Centre for International Commercial Arbitration, Lagos while working on the establishment of the CCJ Arbitration Tribunal.

He also reassured the court of the continued support and cooperation of Nigeria while urging the judges “to continue to exercise the court’s jurisdiction with all fairness and dedication so as to deepen law and order within the community.”

On his part, the Speaker of ECOWAS Parliament, Mousapha Cisse Lo urged for solid guidelines and dispute resolution mechanism for international contracts and investments. He said the presence of these will make the region more attractive for international trade and development.

Lo, who was represented by the Chairman of the Parliament’s Committee on Administration, Finance, Budget Control and Audit, Senator Mohammed Shaaba Lafiagi, said the CCJ should collaborate with Organisation for the Harmonization of Business Law in Africa (OHADA) on the harmonization of business laws.

“In this growing area of international commercial arbitration, collaboration between the ECOWAS Community Court of Justice with the Ohada Court of Justice and Arbitration will be a welcome development,” he said.

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Court wants respect for its decisions

Justice Traore went further to say with all these heavy responsibilities, it is saddening that the court is constituted by only seven judges for the entire 15-member states. He said the court should not be “suffocated at the time when it is making serious efforts to institute the principle of a two-tier system of operation, notably by the inclusion of an appellate chamber.

“No economic reason will be sufficient enough to justify a dismantling of the court, which, I recall, symbolizes at the highest level, the concern for sobriety in the utilization of public resources,” he said.

He said to take steps backwards also implies disregarding the decisions made by the court, “and thus leaving the poor victims to their fate. So, a court decision has value only when it is implemented.”

“To talk of judicial efficiency is to talk of enforcement of court decisions in the best possible time and in good faith,” Justice Traore said.

He called on all ECOWAS member states and sister institutions to think deeply about the CCJ and “take steps towards instituting appropriate reforms so as to place the legal organ of the community along the lines of the best practices of international courts.”


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