Address by Prof. Adesugba at induction ceremony of pioneer members of ADR Institute
THE GIST WITH DRC
An address presented by Professor Adesoji Adesugba DBA. at the induction ceremony of the Pioneer Members of the Institute of ADR Registrars on
THE ROLE OF AN ADR REGISTRAR IN PROMOTING ALTERNATIVE DISPUTE RESOLUTION IN NIGERIA
ADR Popularly known as Alternative Dispute Resolution, some call it Appropriate Dispute Resolution. Whatever you may choose to call it, the fact remains that there is a crying need to supplement litigation through more peaceful and user-friendly options for resolving disputes.
Because of the growth and global acceptance of ADR, the role of ADR registrars is gradually becoming more important and relevant, hence the practice needs to be regulated.
The role of an ADR Registrar in the ADR practice in Nigeria is an enormously grey area that has been subject to evaluation. There are different restrictions on the role of ADR registrars, while other Institutions provide no guidance at all.
Who then is an ADR Registrar?
An ADR Registrar is an individual who is tasked with handling administrative duties for the duration of Arbitration, Mediation, Conciliation, and other ADR proceedings. They are often referred to as either ADR Registrars or ADR Secretaries.
Although ADR Registrars are not part of the tribunal of Neutrals in the proceedings, they play a rather important role. These individuals assist the Neutrals in ensuring the smooth- running of the proceedings. This assistance may amount to handling scheduling, taking notes, and such other administrative tasks.
This is a good entryway into ADR practice, it is a skill that will be useful to all ADR practitioners,especially those with little or no Practice experience. By serving as an ADR Registrar in arbitral proceedings, you have the unique opportunity to understudy more experienced Arbitrators and get yourself acquainted with how the process works.
Article 8 of the Conciliation Rules contained in the Third Schedule of the Arbitration and Conciliation Act, Cap 18, LFN 2004, makes provision for Administrative Assistance, which includes but is not limited to ADR Registry Services.
The Role of a Registrar
Some arbitration Institutions provide some guidance on the appointment and use of tribunal registrars either in their rules or guidelines and notes while others simply acknowledge their use but provide no guidance. The International Chamber of Commerce (ICC)’s Note on the Appointment, Duties and Remuneration of Administrative Secretaries, the United Nations Commission on International Trade Law (UNCITRAL)’s Notes on Organising Arbitral Proceedings, Hong Kong International Arbitration Centre (HKIAC) published Guidelines on the use of a Secretary to the Arbitral Tribunal, Singapore International Arbitration Centre (SIAC) Practice Note on the Appointment of Administrative Secretaries, are some examples.
From the guidelines and notes of the foregoing arbitration Institutions, the functions of a tribunal registrar clearly include administrative tasks such as transmitting documents and communications between the tribunal and the parties, coordinating logistics for hearings and meetings, etc.
Some arbitration Institutions extend the functions of the tribunal registrar to include conducting legal research for the tribunal, collecting case law or published commentaries on legal issues defined by the tribunal, attending the tribunal’s deliberations, preparing drafts of non-substantive parts of the tribunal’s orders, decisions and awards. An example is the American Arbitration Association Code of Ethics for Arbitrators in Commercial Disputes which permits an arbitrator to “obtain help from an Associate, a research assistant or other persons, in connection with reaching his or her decision”.
The London Court of International Arbitration (LCIA) though silent in its rules has published on its website “LCIA’s position on the appointment of Secretaries to Tribunal.” It states that the secretary’s duties should not constitute a delegation of the tribunal’s authority but should involve organizing papers for the tribunal, highlighting relevant legal authorities, maintaining factual chronologies, etc.
Some guidelines such as that of the ICC go further to provide a clear boundary on the duties of tribunal registrars and expressly list examples of what “organizational and administrative tasks” may include, as to expressly prohibiting them from engaging in deliberations and decision making. Also, HKIAC expressly prohibits the tribunal registrars from drafting any substantive parts of the tribunal’s orders, decisions and awards and prohibits the tribunal from delegating any decision-making functions to a tribunal registrar. The International Centre for Settlement of Investment Disputes (ICSID) prohibits Secretaries attending deliberations unless the tribunal consents. It strictly limits the role of the tribunal registrar by providing that “under no circumstances may the Arbitral Tribunal delegate decision-making functions to an administrative secretary. Nor should the Arbitral Tribunal rely on the Administrative secretary to perform any essential duties of an arbitrator.
•Recommended Roles of a Tribunal Registrar to improve the practice of ADR in Nigeria.
Taking into consideration the restrictions placed on the functions of an ADR Registrar by some of the arbitration institutions and in the light of the risk of challenges to awards on the basis of a possible substantive involvement in the arbitral process by an ADR registrar, I am of the view that it is pertinent for the Institute of ADR Registrars to specify the scope of registrar’s functions and inform the parties of same. Furthermore, to avert any possibility of challenge to an award on the basis of the tribunal registrar’s involvement, it is recommended that the role of an ADR registrar should be limited to the following listed administrative tasks:
A. Channel of Communication:
The ADR registrar plays a key role in ensuring:- that the orders of the tribunal are properly communicated to the parties; that all oral and written communication between parties are effectively and efficiently transmitted; that all processes arising from the reference are circulated timeously.
B. Ensure safe custody of the documents generated in the course of the arbitration: The ADR registrar is responsible: for maintaining a record of filings and correspondences; and, for the safe custody of all the documents in the reference.
C. Financial Administration:
The registrar, where required to do so: – holds the parties’ deposits towards administrative expenses; makes disbursements with the approval of the Tribunal; and, renders periodic accounts and a final account at the end of the reference.
D. Confidentiality of the information:
Considering the private nature of ADR, it is essential for an ADR registrar to take all reasonable measures in ensuring the confidentiality of the information made available during the reference.
In the absence of a universal standard for the role of the ADR registrar, the uncertainty regarding the proper role of the registrar will likely persist. Whether the ADR registrar has exceeded his or her role as an assistant to a tribunal may continue to be an issue, he/she must guard against his/her role being a ground for an attempt to set aside an award by a losing party. Considering the enormity of this risk for a tribunal and invariably the successful party in an arbitration.
Professor Adesoji Adesugba