Our Bar is very knowledgeable, our Bar is wealthy, but our Bar is rather scant on integrity – Fidel Albert

“Since 1997 I have been working in Hong Kong, London and Beijing. First with Simmons & Simmons, then Freshfields Bruckhaus Deringer, and finally, via a firm which I co-founded in Beijing in 2002. During this time, I have continued to see tremendous use of governing law clauses referring to England and Wales”, writes Matthew Murphy founder MMLC Group in an article for The Law Society Gazzette, UK.

In a recent article Murphy examined how English law is being used in different jurisdictions. His research led to exciting discoveries on the confidence and trust multinationals and Asian partners place in English law.

Conversely, Fidel Albert’s encounter during legal proceedings at the Supreme Court of Newfoundland & Labrador, St. John’s, Canada raised concerns about the gaps and inefficiencies in the Nigerian judicial system. The Nigeria based legal practitioner said being involved in the case GOSL v. Marport Robotics, led to a voyage of many discoveries.

Matthew Murphy’s story

In the late 1990s, I ran English and international law training seminars for leading People’s Republic of China (PRC) lawyers in Hong Kong and London. It was here that I first noticed their enthusiasm, in that they were keen to understand English and common law concepts.

Given that the modern PRC legal system is akin to a Germanic civil system, many common law concepts and practices initially seem quite fascinating for local PRC lawyers, and there has always been an eagerness to learn how English law has developed and is applied in practice.

Most cross-border work that I have seen over the years while working in Hong Kong and Beijing has been in the capital markets, mergers and acquisitions (M&A), intellectual property (IP) and technology, media and telecommunications (TMT) licensing practice areas.

During this time, I noticed that for those transactions involving UK-based multinationals and Asian partners, most agreements involved governing law clauses referring to the laws of England and Wales.

Several Asia-wide IP/TMT licensing agreements that I worked on over the years for a well-known and diversified UK-based group, saw English law as the happy compromise between the UK licensor and various Asian licensees based in several key Asian hubs, illustrating the trust that many experienced international lawyers place in English law.

Often negotiations commenced with Asian licensees seeking to have agreements governed by their own local laws, with third-party jurisdictions often posed as alternatives. In the end though, English law would win out.

The use of English governing law clauses, coupled with dispute resolution clauses designating Hong Kong-based arbitration centres – such as the Hong Kong International Arbitration Centre (HKIAC) – for dealing with disputes seems to be a popular strategy these days, especially for UK and Hong Kong-based multinationals when they are negotiating commercial and transactional agreements with PRC and Asian partners.

Hong Kong arbitration providers, including the HKIAC, always have a pool of experienced solicitors admitted in England and Wales on their panels, including myself. They are also in a unique position compared with arbitration centres in other jurisdictions as they have provisions for asset protection and other procedural remedies through special arrangements set up between Hong Kong and Beijing.

We are also seeing English law being used as a potential choice for US multinationals, when US and PRC parties are unable to agree on which governing law clause to use in commercial agreements. There is enthusiasm for the consideration of English law, particularly if the PRC parties have operations in the UK and a familiarity with English law.

What would you advise a client who is debating a choice of law to govern contracts in the Asia region?

Like any transaction, these decisions will come down to the where the parties are based, their sophistication in handling international laws, how the dispute resolution procedures are negotiated and how fast access to pre-trial remedies could be sought if an agreement was breached.

If these issues are taken into account and English law is a good fit for the agreement, it’s worth pursing English governing clauses in these agreements, provided it is for the benefit of all parties, they are educated on common law and equitable principles and understand how disputes are determined under English law.

Fidel Albert’s story

The case was GOSL v. Marport Robotics. Proceedings were pending before the Supreme Court of Newfoundland & Labrador, St. John’s, Canada. This case came with lots of lessons and experiences for me, especially as it concerns the gaps and inefficiencies in the Nigerian judicial system.

I think I had just left paid employment to set up our little shop with my partner. We were both 5 years at the Bar when we decided to take this leap of faith. We were briefed by a Nigerian Client to institute legal action in Canada for breach of contract against a Canadian company. Of course we were not licensed to practice law in Canada, so we needed a top-rated Canadian law firm to lead us.

It took us six months of intense search to find a good law firm willing to take the brief. And this was not for lack of good law firms in Canada. There are hundreds of them. Problem was, no one was willing to touch a brief from Nigeria with a 10-meter pole!! Once they hear “Nigeria”, they’ll politely tell you they’re not interested, and hang up. Firm after firm, this is what confronted us. No one wanted to take a big commercial brief, whether they would make money from it or not, as long as it came from Nigeria. It was an extremely depressing experience.

Eventually, a large firm agreed to handle the brief, after much persuasion and cajoling from me. But then, I didn’t know they had done intensive due diligence on me before accepting. One night, I got a call from my former boss, Babatunde Irukera, demanding to know what business I had to do in Canada. I told him I had some prospective litigation we were trying to get going there. He said well, Aelex (one of the biggest firms in Nigeria) just called him to confirm who I was and whether I had worked with Simmonscooper Partners as I claimed, and he graciously confirmed that I was legitimate. So, it turns out that the Canadian law firm had engaged one of the biggest law firms in Nigeria to undertake due diligence on me, for a fee I reckon, before accepting a legal brief from me. Interesting!

All said and done, the case was filed and I had to attend the Discovery Proceedings in Canada. Lawyers would understand what this means. It was during the proceedings that this picture was taken. So Discovery Proceedings is simply where parties meet on the record to examine each other’s documents, narrow down issues of disputes, examine witnesses and perhaps make admissions. It helps to streamline the case of each party preparatory to trial. Proceedings are recorded and are undertaken under oath. It’s a very tedious process.

But I saw strange things. I’ll tell you one of those. In the course of proceedings, the Defendant’s Counsel handed us a bundle of documents that it would rely on at trial. We were supposed to examine each one, ask questions on it and indicate if we had any objections to admissibility of the documents. I remember clearly that while examining the documents, the opposing counsel stopped us abruptly, and indicated to us that we had missed examining a key document in the bundle and that he believes we ought to examine that document. We asked him which document he was referring to, and he flipped the bundle and extracted the document he thought we missed, and kept it on the table. Fair enough. So I took a look at this document and couldn’t believe it. This single document was enough to bury their entire case, yet the Counsel felt himself under a bounded obligation to draw our attention to it, to the detriment of his own case!!

I reflected this matter for a long time, and kept thinking of the judicial system in my own country. After the proceedings, I asked my lead Counsel, Liam, why the opponent did what he did. Liam looked at me bemused, perhaps wondering why I, as a lawyer, should ask such stupid question when I ought to know. But he did eventually tell me that if the man did not disclose the document, he would have been disbarred. It’s an extremely serious infraction in their judicial system, according to Liam.

I thought about the Nigerian judicial system again and what it has become in recent times. You see, in our Bar, honest disclosure by lawyers is a very strange phenomenon. Lawyers actively and deliberately conceal and suppress facts and evidence that they consider injurious to their case. More worrisome is the fact that we do so under oath. Let’s say I was the opposing counsel in that case, what I would have done, and what my client would gladly pay me to do, would have been to burn that adverse evidence and then have my junior in chambers swear under oath that such document never existed. And the oath ends with a phrase “so help me God”! But I kid you not, this is even not the worse things that happen on a daily basis at the Bar! Worse things happen.

I have personally seen a lot in my few years at the Nigerian Bar. Sometimes I’m left wondering what has become of this our profession. Unfortunately, there are no consequences, especially for the big guys who have exerted lots of sweat to institutionalize these terrible practices. It was supposed to be a profession of nobility, but sadly, except for a few, you can’t find integrity at the Bar. Even worse, the system seems to reward unethical conducts. I have seen people who should not be lawyers at all on account of a total lack of integrity become Senior Advocates of Nigeria. It almost seems as though the harder you dig in the mud, the more likely you are to strike gold. So the Bar has become a huge stampede in mud and grime.

So do you still wonder why the international legal community will scarcely take the Nigerian lawyer serious? Out there, far more premium is placed on integrity and rectitude, than knowledge or wealth. And this is the problem. Our Bar is very knowledgeable, our Bar is wealthy, but our Bar is rather scant on integrity.  

How is it that many multinational companies will rather lose a deal in Nigeria than sign a contract where forum for dispute resolution and governing law is stated as Nigeria? I’m talking about contracts that are signed in Nigeria, where the work is to be executed in Nigeria, and where all the parties are in Nigeria! But when it comes to the dispute resolution and/or governing law clauses, they insist to the death that any dispute arising from the contract must be resolved in courts of other jurisdictions, not Nigeria. In fact, if you insist on NIGERIA, they will rather walk away from that deal, no matter how much profit they were to make, than leave jurisdiction to Nigerian Courts! Ever wondered the effect of this? Do we not know that that is work taken away from Nigerian lawyers? Or that that is transaction and litigation experience taken away from the Nigerian lawyer, which we will never have?

Even our own Government, when they have huge projects to execute in Nigeria, hire international law firms to undertake work for them. The most benefit we get from these deals is that government will hire some of our local law firms to piggy-back and act as “assistants” (but they use respectable appellations like “co-counsel”, “co-solicitors” to describe their role) to these international law firm to do the work. Our government won’t even trust its own local firms. You know, this reminds me of what my boss used to say ever so often to us when he wanted to underscore the importance of exhibiting integrity in all our dealings. He would say “do you know that even a thief will always look for an honest man to keep the quarry for him?”? Think about it, it’s the gospel truth. 

And yet we strut around like peacocks with so much hubris, seemingly oblivious to the fact that our conduct in destroying the moral fabric of this profession will perpetually keep us as bottom feeders, where we wallow in the shallows waters, forever banished from the deep ends of the oceans, where international law firms are raking the bottoms of their priceless bounties. But I have no pity. We laid this bed of thorns with our own hands, let’s enjoy the sleep!

When you read the English decision in IPCO v. NNPC, and how the English Courts terribly x-rayed the Nigeria legal system under the harshest light possible, your heart will melt. Mine melted. Despite a heroic attempt at patriotism, I knew there was truth somewhere in there.  

IPCO v. NNPC is a decision where a party got an arbitration award against the defendant, NNPC, in an international arbitration. Before he could enforce the award, the defendant filed an action in the NIGERIAN courts to set aside the award. The plaintiff joined issues in the new suit in the NIGERIAN courts but thereafter went to the UK to file an action for enforcement of the award, while a challenge of same award was pending in Court in Nigeria.

Many questions faced the UK Court in the enforcement proceedings, but the one that caught my attention was whether enforcement could proceed in the UK, while proceedings to set aside the same award sought to be enforced was pending in Nigeria! Normally, the UK court should have waited for the Nigerian challenge proceedings which came before the enforcement proceedings in UK. But the UK Court didn’t think it was that easy and straightforward because of the country involved. The UK Court spent a great deal of time x-raying the unfairness of Nigerian legal system and how the concept of justice was fleeting on account of inexplicable delays and questions of integrity. In the end, the Court settled for requiring the Defendant, NNPC, to make deposits of huge sums as security before a stay of the UK proceedings could be ordered.

While I am not unaware of the appeal processes in the IPCO v. NNPC case and variations to the orders of the lower Court that were eventually made by the House of Lords, I still find it distressing that the world has taken judicial notice of what we have made of our judicial system.

I fear that if something drastic is not done to reposition our Bar and the entire justice administration system, I fear that if we do not raise the bar of the Bar, this Bar of ours will be reduced to rowdy sessions of inebriate fellows at a raucous bar. We will have a bar without the Bar.

We wait!