A WEEKLY ROUNDUP OF LEGAL & TECH EVENTS GLOBALLY | June 11, 2021
THIS IS REFLECTIONS, our weekly roundup of events in the legal and technology sector, covering various topics and interesting learning points for today’s professional. If you couldn’t make an event, don’t worry, we probably made it and have all the juicy scoop for your reading pleasure and learning.
Do you have an upcoming event you would like us to know about or attend? OR do you know of one you would like to read about? Send an email to us HERE.
FIRST REPORT
THEME: ETHICS IN GOVERNMENT CONTRACTING-4TH JUNE, 2021
SPEAKERS:
Mrs Kunbi Awopetu
Nwogu David Chinedum
Okezi Okah- Ava
The section started at exactly 11:00am with Miss Chidinma Agu who was the moderator welcoming and introducing the speakers. The first speaker Mr. David Nwogu commenced his session by explaining and giving an overview on what the topic of the day entails.
The speaker defined contract as promises or set of promises made by two parties enforceable in law. Furthermore, the first speaker made reference to the concept of Landing Government contract which basically deals with the contractual relationships between governments and other non-governmental organizations pointing out the need for such organization to be competent in their dealings and also comply to the terms and conditions of the contracts. The first speaker, in the cause of his presentation also enumerated some factors of Ethics in Government Contracting. These Pillars includes:
• Employees shall adhere to all laws and regulations.
• Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in the Standards of Ethical Conduct.
• Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
• Employees must display professionalism in dealing with the government.
After these pillars mentioned above, the first speaker listed some basic laws, regulations that give requirements for establishing, implementing and maintaining government ethics compliance programs. For instance,
(1) APG- Advance Payment Guarantee
(2) BPP- Bureau of Public Procurement etc.
(3) Code of Conduct for Public Officer
(4) Criminal Code, Penal Code
(5) International Convention against Corruption
(6) Advance Fee Fraud.
Lastly, the speaker talked on the penalties for noncompliance including suspension and debarment issues, and other civil and criminal penalties.
2ND SESSION
The second Speaker, Mrs. Kunbi Sijuade, started her session by stating that Government procurement or public procurement is the procurement of goods, services and works on behalf of a public authority, such as a government agency. She mentioned that the law usually requires the procuring authority to issue public tenders if the value of the procurement exceeds a certain threshold. She also made mentioned some laws and regulations that governs public procurement. In Nigeria, the relevant legislation is the Public Procurement Act, 2007 (PPA). Sections 1 and 3 of the PPA established the National Council on Public Procurement (the Council) and the Bureau of Public Procurement (BPP), respectively. The Council, as the first regulatory authority under the PPA, is responsible for:
(1) Considering, approving and amending the monetary and prior review thresholds for the application of the provisions of the PPA by procuring entities;
(2) Considering and approving policies on public procurement; and
(3) Approving changes in the procurement process to adapt to improvements in modern technology.
The BPP, as the second regulatory authority, has the following responsibilities, amongst others:
(1) To harmonise the existing Government policies and practices on public procurement and ensure probity, accountability and transparency in the procurement process;
(2) To establish pricing standards and benchmarks;
(3) To ensure the application of fair, competitive, transparent, value-for-money standards and practices for the procurement and disposal of public assets and services; and
(4) To attain transparency, competitiveness, cost-effectiveness and professionalism in the public sector procurement system.
The provisions of the PPA, as per section 15 thereof, cover all procurement of goods, works and services carried out by:
(1) the Federal Government and all procurement entities; and
(2) all entities outside the foregoing description which derive at least 35% of the funds appropriated or proposed to be appropriated, for any type of procurement described in the PPA, from the Federation share of the Consolidated Revenue Fund.
She further stated that “Procuring entity”, from the interpretation section of the PPA (section 60), is defined to mean “any public body engaged in procurement” and includes a Ministry, extra-Ministerial office, government agency.
She ended the session by remarking that for these contracts to move smoothly, there is need to be a form of corporate Governance in the state.
The third speaker, Mr Okezi Okah- Avae, did a recap of what the other speakers have discussed and answers some of the questions in the chat box. The meeting ended at 12:30pm.
ARBITRATION IN AFRICA: EXPANDING THE SCOPE (DAY 2)
The conference is the key forum for understanding international commercial arbitration in Africa. The objective of this year’s conference is to provide updates in the region and encourage Africans to become global practitioners in International Arbitration.
The conference commenced at 9:00 am with opening remarks from Mr Babatunde Savage, Chairman, International Chamber of Commerce Nigeria (ICCN) and International Chamber of Commerce (ICC) Regional Coordinator for Africa. In his remarks, Mr Savage paid tribute to Professor G.A Olawoyin SAN, who recently passed on. Professor Olawoyin was a former member of the ICC International Court of Arbitration in Paris, France.
Diamana Diawara, Africa Director Arbitration and ADR, ICC International Court of Arbitration, Paris, introduced CLAUDIA T. SALOMON, the New President, ICC International Court of Arbitration. Miss Claudia in her interview with Diamana stated that her plans for the ICC was to build an ICC that would meet and exceed client’s expectations as well as turn the ICC to the preferred institution for dispute resolution.
THE 2ND PLENARY SESSION began at about 9:15 am and was moderated by Mrs. Doyin Rhodes-Vivour, SAN.
International Arbitration has attracted an array of participants-counsel, arbitrators, experts and funders- from diverse backgrounds. This has consequently given rise to the subject of ethics in its various contexts, which has become a practical problem of high importance in the administration of international arbitration.
International arbitration typically involves a host of cross border elements leading to a number of legal and practical issues. The session addressed issues such as the application of existing national ethical guidelines in cross border arbitration proceedings and the need or otherwise of establishing enforceable ethical norms, particularly in circumstances where counsel and arbitrators from different jurisdictions are involved in the same proceedings.
ANTONIA BIRT, Partner at Curtis Mallet-Prevost Colt & Mosle
JOSE RICARDO FERIS, International Dispute Resolution Partner at Squire Patton Boggs
PROFESSOR GBOLAHAN ELIAS (SAN) & Partner in G. Elias & Co.
MR PATRICK TAYLOR, Partner Debevoise & Plimpton LLP, London
Antonia Birt spoke on the issues of unethical conduct on the part of counsel in arbitration proceedings. Counsel in various jurisdictions have their codes of conduct regulated by their respective regulatory authorities but the question then arises, are these enough to maintain efficacy in international arbitration? It has been in debate for some time now that a uniform code of ethics is required for counsel representing parties.
Jose Feris spoke on the sources of ethical duties for Arbitrators. 70% of Arbitrations are Institutional. These institutions thus create their own ethical rules. In Africa, most arbitration is ad-hoc, there are no formal rules but the arbitrator(s) is still expected to conform to basic standards of ethical norms. The arbitrator has a duty to disclose circumstances that will impact his independence and impartiality. There is a delicate balance to be maintained between disclosure and confidentiality. How much of his prior dealings should an arbitrator disclose? Jose proposes that parties be placed with the burden of determining what the arbitrator what should disclose.
Mr Patrick Taylor discussed the treatment of “without prejudice” documentations. Confidential interactions between parties at dispute are sometimes marked without prejudice. This simply means that while the parties try to reach a settlement, the parties do not admit any part of the case or concede any rights in the event that the negotiations fail. These correspondences are confidential and cannot be shown to any court. These correspondences also do not impact the arbitral award or affect the merits of the case. This is an established in rule in common law jurisdictions but some civil law jurisdiction e.g., Belgium do not recognise this rule.
The two legal systems, common law and civil law may cause a lack of uniformity in how the rules of ethical conduct are applied during an international arbitration proceeding.
Counsel may act in accordance with its own national code of conduct but unintentionally his actions conflict with the codes of conduct of other jurisdictions involved in the respective arbitration. For example, in the United Kingdom, a counsel is not permitted to practice with, rehearse or coach the witness in relation to the evidence that witness is being called for. However, on the other hand, this practice is allowed in the United States. Another example is where the rules in Australia mandate that confidential information received in error by the other party be returned but in China and Brazil, parties have no obligation to return documents containing sensitive or confidential information.
The International Bar Association guidelines are non-binding but are generally used as guiding principles in international arbitration. There is still no uniform code applicable to lawyers/counsel at international level.
COVID-19: Accelerating the use of technology in arbitration in Africa: Challenges and opportunities.
The session examined the impact of the COVID-19 Pandemic on the Arbitration and Dispute Resolution process, the challenges of taking ADR practice Online and applying virtual platforms to conduct proceedings virtually in Africa and the opportunities that arise for practitioners.
The session was moderated by Dr Ademola Bamgbose
ASHWITA AMBAST, Legal Counsel, Permanent Court of Arbitration.
ANISH WADIA, FCiArb, Independent Arbitrator and Mediator with the Dubai International Arbitration Center.
NANIA OWUSU-ANTIFIKOMAH, MCIArb, Partner, Bentsi- Enchill, Letsa & Ankomah.
OBIOMA OFOEGO, Associate, Quinn Emmanuel (Paris)
For Ms. Ashwita at the Permanent Court of Arbitration (PCA), the general approach is to not impose any particular online platform on the parties, rather, the parties use whatever platforms they are most comfortable with. The use of technology in international arbitration is not entirely novel idea as PCA has been using video conferencing platforms prior to the outbreak of the pandemic. Some of the challenges have included; time zone suitable for all parties and the tribunal, due process, witness testimonies, data security and protection.
Obioma Ofoego shares the same concerns as Ms Ashwita, on the issue of witness coaching, the credibility of virtual testimony particularly in cross examination. Fortunately, some of these concerns have been alleviated through the installation of 360-degree cameras.
Mr Anish Wadia listed some of the benefits of the use of technology in International Arbitration has to include, reducing travel time and costs, eliminating the hassle of getting visas witnesses are able to present testimony from anywhere in the world. It has also opened more opportunities for younger arbitrators who are typically more flexible and tech savvy.
Nania Owusu-Antifikomah advises International Arbitration Practitioners to invest personal development, top of the line tech hardware and software. Technology has removed borders and boundaries and has opened up opportunities.
Third party funding (3PF) is an established form of litigation costs risk management. The pros and cons of the 3PF in the African region in assisting with arbitration claims was discussed in this session
The session was moderated by Mr. Prof. Koyin Ajayi SAN.
NED BEALE, Partner, Hausefield & Co. LLP, London.
ZUKO NONXUBA, CEO Nonxuba Inc, South Africa.
RYHAM RAGAB, Group General Counsel, Samcrete for Engineering Investments, Egypt.
TUNDE OGUNSEITAN, Partner, Ogunseitan Arbitration, Lagos & London.
Third party funding is an arrangement where a party who is not involved in an arbitration provides fund to a party to that arbitration in exchange for an agreed return. The funding covers the funded party’s legal fees and expenses incurred in the arbitration. Arbitration is expensive and where a party does not have the means to pursue a meritorious claim, funding may be its only option.
Third party funding for international arbitration is now permitted in a number of jurisdictions.
The downside is that a successful claimant may have to pay a significant portion of its award to the funder.
There is a growing trend of mandatory disclosure of TPF by the party using it.
Sustaining the value of international Arbitration through the tools of Ethics: A word from the stakeholders by Prof. Gbolahan Elias SAN
Prof. Gbolahan talked about the issue of ethics in arbitration for funders. He stated that as a matter of fact, funders are significantly different from parties or their counsel as they are not strictly speaking before the arbitrator, therefore, no mandatory ethics code is applicable to funders except in places like UK (UK code 2018). He mentioned that under the UK code, there are ethical issues raised regarding funders which include:
Prof Elias also spoke on ethical issues regarding lawyers as expert witness in arbitration proceedings. He mentioned that the main focus of ethical codes is on lawyers as counsel and not as expert witness. He however submitted that the application of the rules of ethics for lawyers as provided by the Rules of Professional Conduct is broad in scope and is applicable in all context and by extension applicable to arbitration.
Lastly, Prof. Elias mentioned the unethical practice of lawyers using the covid-19 occurrence as a means of occasioning delay tactics in arbitration proceedings. He submitted that dealing with the issue of delay request in arbitration by counsel should be considered on a case-by-case approach by drawing adverse inference from the facts of the case and preventing further delay.
Closing remarks was made by Ms. Olubunmi Osuntuyi.
3RD REPORT
DATE: 9TH JUNE, 2021
INTRODUCTION
The webinar started at about 3:06pm with the host in the person of Onyinye Ukegbu welcoming the panelists and attendees. The host invited Ose Okpeku who stated that the discussion will be engaging and enlightening.
The host then invited the Moderator, Wofai Roberts who gave a brief insight of what the discussion will be about. He mentioned that the corona virus (covid-19) was first reported by the World Health Organization (WHO) in December 2019. He also stated that according to WHO, there are only thirteen (13) vaccines produced around the world. That only less than 2% of the world population have been vaccinated while in Nigeria, barely one million Nigerians have been vaccinated. Wofai then stated that in the occupational world, some employers are making policies to compel their employees in collecting the vaccine. The moderator then introduced the panelists. He stated that the panelists consist of four persons who will be discussing the topic. He then introduced the panelists one after the other.
The moderator stated that the lead panelist is Professor Babatunde Salako. He however mentioned that Professor Salako will be represented by Dr. Oladele. He explained that Professor Salako was unable to attend the webinar because he had to make a presentation at the National Assembly at Abuja hence, the representation by Dr. Oladele.
Wofai read a brief biography of Professor Babatunde Salako. He stated that Professor Salako graduated from the University of Ibadan with MBBS degree in 1986. That Professor Salako is a member of many professional associations including the Nigerian Medical Association, Fellow Royal College of Physicians of Edinburgh United Kingdom and other notable ones.
The moderator then introduced the next discussant in the panel in the person of Mr. Olumide Babalola. The moderator stated that Olumide is a lawyer; that he is one of the most popular public interest lawyer in Nigeria. He stated that Olumide is a publisher who has published about five books to his name. That Olumide has taken up litigations against several government agencies as well as the Federal government.
The next discussant that was introduced was Mr. Chuma Nwankwo. Wofai mentioned that Chuma is the Head Human Resource at Consolidated Breweries Plc (A subsidiary of Heineken International). That Chuma has over 20 years’ experience in human resources and is a leading human resource expert as well.
The last discussant in the panel introduced was Mary Ekemezie. Wofai introduced her as a managing associate at Udo Udoma & Belo-Osagie law firm. That she is a managing associate in the firm’s employment and corporate advisory team. Wofai mentioned that Mary has been involved in multiple transactions across her practice areas including mergers and acquisitions, investments, syndicated financing and project finance transactions. He further stated that Mary advises target companied involved in mergers and acquisitions on issues relating to employment law. He emphasized that she is a leading employment expert.
Starting the discussion was Dr. David Oladele who represented Professor Babatunde Salako. He started his discussion on the topic with:
COVID-19 INFECTION AND CLINICAL RESEARCH
Under this, he stated that corona virus (COVID-19) being a new disease broke out in December, 2019. That it emanated from Wuhan in China with a strong zoonotic origin. He further stated that the disease rapidly escalated to over 210 countries outside China, leading the World Health Organization (WHO) to declare the outbreak a “Public Health Emergency of International Concern” on the 30th of January 2020. That it was classified by the WHO on 11th March, 2020 a pandemic. He mentioned that as at June 8, 2021, there are 173,331,478 confirmed and 3,735571 covid-19 deaths.
Dr. Oladele went on to state that there was no effective treatment except observation of preventive measures like frequent hand washing, use of face mask, keeping social distancing, engaging in good respiratory hygiene and use of hand sanitizers to cob viral transmission from person to person. He stated that Nigeria recorded its first case on 27th February, 2020 as of 8th June, 2021, 166,816 and 2,117 deaths. That at the time of the first case, there were less than five molecular laboratories in the country. He maintained that the Nigeria Centre for Disease Control swung in to action to increase capacity for case detection, contact tracing and help set up treatment centers. That the government also set up the Presidential Task Force (PTF) for covid-19.
The moderator asked Dr. Oladele ‘whether Africa has the capacity to produce its own vaccine’.
Dr. Oladele answered the question in the negative. He explained that although there are about five countries that can produce vaccines but not the covid-19 vaccine. He mentioned the current African countries who are manufacturers of human vaccines. He cited the following countries and what they produce;
Oladele explained that Nigeria as a country has not also being able to produce its own vaccine. He then went on to mention that an organization named the Global Alliance of Vaccines and Immunizations are trying to see how under developed and poor countries can be provided with the covid-19 vaccines.
He moved on to talk about Vaccine Safety. Here, he explained that before any of the covid-19 vaccines can be authorized for widespread use in the population, the manufacturers have to demonstrate that they are safe and effective. That tens of thousands of people across the world have already received covid-19 vaccines in clinical trials. Furthermore, he stated that no serious adverse reactions to the vaccines were seen in the trial participants who received them. That any reactions reported were similar to those seen following other vaccines such as pain and tenderness at the injection site and fever, headache, muscle aches (https://orpical.com/buy-soma-online/) and fatigue.
Oladele talked about the Challenges – Myths and Disinformation about Covid- 19 Vaccine
He explained that the first myth about the vaccine is that the process was rushed thus there is compromised safety. In response to this myth, he stated the fact that the vaccine was studied in thousands of people over a two-month period which underwent rigorous review by the FDA, CDC (Center for Disease Control and Prevention) and that date were published in the New England Journal of Medicine.
Secondly, he stated that another myth is that people who get vaccinated don’t have to wear masked anymore. Here, he explained that evidence has shown that vaccination will prevent people from getting sick but they may still acquire and transmit the virus to others. Lastly, he stated that there is a myth that the vaccine has microchips that allow the government to track people. He again stated that there is no evidence to support this myth.
Oladele moved to COVID-19 AND OCCUPATIONAL HEALTH
He explained that the Employee Compensation Act, 2010 defines occupational disease as a disease that is contracted in the course of an employment or due to exposure to risk factors at work. That a worker or an employee who suffers disabling occupational disease/death, arising out of or in the course of employment is entitled to compensation. He mentioned that covid-19 disease therefore constitutes an occupational disease as it may be contracted at workplace.
He went on to state the health and safety issues at workplace.
He stated that it is advisable for an employer to either employ or assign an employee or a team to keep the workplace safe.
Those employers have a legal duty to guarantee the safety of employees and visitors to the workplace. At this point, he mentioned that failure to discharge this duty may give rise to claims for negligence and occupational liability.
Oladele stated that an employer may therefore ask employees to provide personal, medical, travel and other related data or take pre-employment medical tests especially in relation to covid-19 infection control.
He listed some Workplace Health and safety issue in Covid-19
It was stated by Dr. Oladele that health and safety protocols should be established at the workplace and should include deep cleaning, wearing face masks, temperature reading, hand washing, disinfecting common areas, social distancing, limitation of visitors, errands and maximum of 20 or less people in a given area. He further explained that employer should comply with the NCDC Guideline and recommendations in case a staff is diagnosed to have Covid-19. That to protect other staff, employers could request or insist that returning workers or employees undergo medical examinations before resuming work, provided it complies with contractual terms, HR policies.
POTENTIAL BENEFITS OF COVID-19 VACCINE was the next issue Oladele discussed. He explained that there are Potential benefits to employers which are that it keeps the workforce healthy by preventing employees from getting covid-19, reduces absences due to illness, improves productivity and that it improves morale. He then stated the Potential benefits to employees. He stated that to employees, it prevents covid-19 illness, reduces absences and doctor visits due to illness and that it also improves morale.
On the issue of whether Employers can force their employees to take the covid-19 vaccine? Dr. Oladele stated that for an employer to insist that employees take the vaccines, it must be supported by legislation, a directive by an authorized agency or the terms of employment. He went on to state that employers should review their contracts of employment and or HR polices to require employees to comply with such instructions. That if a legislation/regulation/directive mandates employee to obtain approved vaccines during epidemics, failure to comply could give rise to liabilities that could be enforced.
Dr Oladele ended his discussion by stating some best Practices recommendations from CDC (Center for Disease Control and Prevention)
He explained that an employer could offer flexible, non-punitive sick leave options (e.g., paid sick leave) for employees with signs and symptoms after vaccination. That employer should allow time for vaccine confidence to grow. He pointed out that workers who are hesitant at first may become more confident after seeing co-workers get vaccinated.
Finally, he stated that organizations and individuals who are respected in employee communities should be asked to help build confidence in covid-19 vaccines.
The moderator, Wofai then asked Mr. Chuma Nwankwo for his perspective being a HR expert on the topic for discussion which is Whether employers can force employees to take the covid-19 vaccine?
Mr Chuma stated that the topic borders on the intersection of public health and individual rights. He posited that there is no enabling law(s) or regulation(s) that entitle employers to force the taking of the vaccine compulsory. He emphasized that he is not aware of any such law. He was of the opinion that all employers can do is to encourage employees to take the vaccine but definitely cannot make it a compulsion. He mentioned that in creating an encouragement environment, the employers can create time for the employees to get the vaccine and that by also giving room or time for vaccine confidence. He furthermore stated that the employers cannot compel employees else it will amount to infringement of their rights as there is no law or regulation in existence for the compulsion or enforcement of taking the vaccine.
Mary Ekemezie was of the opinion that employees who have reasons for refusal in taking the vaccine, stated that these reasons should be considered and not just that the issue of public health should override everything. She mentioned that under the Public Health Act, the wants of employees is what is paramount eventually.
The moderator posed a question to Mr. Olumide Babalola; which is if there is a Fundamental Rights perspective to the issue of vaccination; that is a right of choice.
In response to the question, he started by referring to the website of WHO and stated that the WHO stated that the vaccine is safe for most people and not all. Secondly, that WHO do not know if the vaccine keeps one safe or the other person from getting infected. Olumide stated that the vaccine interferes with the right to life. That people have died as a result of taking the vaccine. He also explained that the vaccine interferes with the right to privacy of the human body. He stated that an employee should not be compelled to take the vaccine because it affects the rights of an individual as well as having many health implications. He also aligned with the position of Mr. Chuma that there is no law existing in Nigeria which compels an employee to take the vaccine.
In response to the contention of Mr. Olumide concerning the website of WHO where they stated that the vaccine is safe for most people but not all, Dr. Oladele stated that WHO does not talk in absolute but wants to be certain about all information concerning covid-19.
According to Mary, she was of the opinion that if a vaccinated person can still get infected with covid-19 and also still transmit same; then of what purpose should the vaccine be made compulsory? She expressed her opinion that an unvaccinated person is more prone to risk or danger.
Dr. Oladele was asked whether the current approved vaccines are effective against the pandemic. He mentioned AstraZeneca and stated that there is no fully certainty about the effectiveness but that with time, more information will be divulged on the effectiveness of the Covid-19 vaccine.
The moderator again posed a question to Mr. Chuma which is ‘if is it discrimination to give incentives to an employee who has been vaccinated and not to one who hasn’t been vaccinated.’
Mr. Chuma stated that it will be an unfair practice to segregate employees on this issue when it comes to compensation. That however, if it comes within the scope of productivity then incentives can be done but not in the issue of vaccination.
Mary Ekemezie was asked thus; ‘can an employer be sued for dismissing or sacking an employee for refusing to take the vaccine?’
She answered in the positive and further explained that the situation in Nigeria makes it easier to sue such employer. That the non-existence of any legislation or regulation, the inadequate supply of the vaccine itself, the sharing formula of the vaccine as there is age priority in Nigeria make the employee to have a good case in Court. She mentioned that all these factors will equally not make an employer have a good standing in the law suit.
Mr. Olumide make reference to Sections 45 and 318 of the Constitution of the Federal Republic of Nigeria, 1999 and explained that there has to be a law in Nigeria that compel individuals to take the vaccine before it can be enforceable. That until such law or legislation is made then receiving the vaccine cannot be made compulsory.
The discussion came to an end on this note and the moderator Wofai Roberts thanked all the panelists for the interesting and insightful discussions and deliberations.
Onyinye Ukegbu also thanked the panelists for the thorough exploration of the topic. She thanked all the participants and attendees for equally joining.
The webinar came to an end at exactly 4:39.
The Federal Government and the Nigerian Bar Association gathered all the players in the Justice…
One of the principal organs of the United Nations is the International Court of Justice…
By Sylvester Udemezue Where a lawyer (or litigant) has good grounds for complaints against a…
CASE TITLE: IYANAM v. UBA PLC & ANOR (2024) LPELR-61550 (CA) JUDGMENT DATE: 5TH JANUARY,…
CASE TITLE: FIDELITY BANK PLC v. PETER (2024) LPELR-61551(CA) JUDGMENT DATE: 5TH JANUARY, 2024 JUSTICES:…
By Olumide Babalola IntroductionStrategic litigation has been defined as “using legal means aiming to ‘bring…