CONFLICT MANAGEMENT OPTIONS FOR INTERNATIONAL ENERGY/POWER DISPUTES 2 ND NATIONAL SEMINAR ON ENERGY AND NATURAL RESOURCES 18 TH AND 19 TH NOVEMBER 2003

INTRODUCTION CONFLICT MANAGEMENT – THE PROCESS OF DEALING WITH OR CONTROLLING A GIVEN CONFLICT CONFLICT MANAGEMENT – THE PROCESS OF DEALING WITH OR CONTROLLING A GIVEN CONFLICT

TYPES OF DISPUTES MARITIME BOUNDARY DISPUTES MARITIME BOUNDARY DISPUTES OIL AND GAS TRADING CONTRACT DISPUTES OIL AND GAS TRADING CONTRACT DISPUTES OFFSHORE CONSTRUCTION DISPUTES OFFSHORE CONSTRUCTION DISPUTES PIPELINE DISPUTES PIPELINE DISPUTES EQUIPMENT DISPUTES EQUIPMENT DISPUTES QUALITY DISPUTES QUALITY DISPUTES MATTERS OF JURISDICTION MATTERS OF JURISDICTION

NOTE NEED OF THE CLIENT IS OF THE UTMOST IMPORTANCE NEED OF THE CLIENT IS OF THE UTMOST IMPORTANCE CONTRACTUAL TERMS MAY BE RENEGOTIATED CONTRACTUAL TERMS MAY BE RENEGOTIATED WHERE RENEGOTIATION PROVIDED FOR IN THE CONTRACT THE TERMS NEED TO BE PRECISE WHERE RENEGOTIATION PROVIDED FOR IN THE CONTRACT THE TERMS NEED TO BE PRECISE

AVAILABLE OPTIONS LITIGATION LITIGATION ARBITRATION ARBITRATION ALTERNATIVE DISPUTE RESOLUTION ALTERNATIVE DISPUTE RESOLUTION MEDIATION MEDIATION CONCILIATION CONCILIATION MINI-TRIAL MINI-TRIAL EXPERT DETERMINATION EXPERT DETERMINATION WATCH OUT FOR LIMITATION PERIODS WATCH OUT FOR LIMITATION PERIODS

LITIGATION QUICKLY BEING OVERSHADOWED BY ARBITRATION AS A VIABLE OPTION QUICKLY BEING OVERSHADOWED BY ARBITRATION AS A VIABLE OPTION NO PROVISION IN CONTRACT FOR CONFLICT MANAGEMENT NO PROVISION IN CONTRACT FOR CONFLICT MANAGEMENT PARTIES AGREE TO LITIGATE PARTIES AGREE TO LITIGATE ONE PARTY INSISTS ON LITIGATION ONE PARTY INSISTS ON LITIGATION UNDERTAKEN AT EITHER FEDERAL OR STATE COURTS UNDERTAKEN AT EITHER FEDERAL OR STATE COURTS

THE FEDERAL HIGH COURT ONE JURISDICTION ONE JURISDICTION CIVIL PROCEDURE RULES 2000 CIVIL PROCEDURE RULES 2000 ACTION COMMENCED IN DIVISION WHERE CONTRACT PERFORMED OR DEFENDANT RESIDES OR CARRIES ON BUSINESS ACTION COMMENCED IN DIVISION WHERE CONTRACT PERFORMED OR DEFENDANT RESIDES OR CARRIES ON BUSINESS ACTION COMMENCED BY ISSUANCE OF ACTION COMMENCED BY ISSUANCE OF WRIT OF SUMMONS WRIT OF SUMMONS ORIGINATING SUMMONS ORIGINATING SUMMONS ORIGINATING MOTION ORIGINATING MOTION PETITION PETITION

STATE HIGH COURTS TERRITORIAL AND JURISDICTIONAL LIMITS TERRITORIAL AND JURISDICTIONAL LIMITS JUDICIAL DIVISIONS IN EACH STATE JUDICIAL DIVISIONS IN EACH STATE LAGOS – COMMERCIAL NERVE CENTER LAGOS – COMMERCIAL NERVE CENTER CURRENT RULES OF COURT IN LAGOS STATE CURRENT RULES OF COURT IN LAGOS STATE HIGH COURT OF LAGOS STATE CIVIL PROCEDURE RULES 1994 HIGH COURT OF LAGOS STATE CIVIL PROCEDURE RULES 1994

HIGH COURT OF LAGOS STATE CIVIL PROCEDURE RULES 1994 ACTION COMMENCED IN DIVISION WHERE CAUSE OF ACTION AROSE OR DEFENDANT RESIDES OR CARRIES ON BUSINESS ACTION COMMENCED IN DIVISION WHERE CAUSE OF ACTION AROSE OR DEFENDANT RESIDES OR CARRIES ON BUSINESS FOUR JUDICIAL DIVISIONS FOUR JUDICIAL DIVISIONS LAGOS LAGOS IKEJA IKEJA IKORODU IKORODU BADAGRY BADAGRY ACTION COMMENCED BY ACTION COMMENCED BY WRIT OF SUMMONS WRIT OF SUMMONS ORIGINATING SUMMONS ORIGINATING SUMMONS ORIGINATING MOTION ORIGINATING MOTION PETITION PETITION

HIGH COURT OF LAGOS STATE CIVIL PROCEDURE RULES 2003 ACTION COMMENCED BY ACTION COMMENCED BY WRIT OF SUMMONS WRIT OF SUMMONS ORIGINATING SUMMONS ORIGINATING SUMMONS ORIGINATING PROCESS MUST CONTAIN ORIGINATING PROCESS MUST CONTAIN STATEMENT OF CLAIM OR AFFIDAVIT STATEMENT OF CLAIM OR AFFIDAVIT ALL DOCUMENTS TO BE RELIED UPON ALL DOCUMENTS TO BE RELIED UPON LIST OF WITNESSES TO BE CALLED LIST OF WITNESSES TO BE CALLED SWORN DEPOSITIONS BY ALL WITNESSES SWORN DEPOSITIONS BY ALL WITNESSES WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS

2003 RULES PRE-TRIAL CONFERENCES PRE-TRIAL CONFERENCES SCHEDULING SCHEDULING STRICTER RULES CONCERNING AMENDMENTS OF PLEADINGS AND ADJOURNMENTS STRICTER RULES CONCERNING AMENDMENTS OF PLEADINGS AND ADJOURNMENTS IMPLEMENTATION THE DECIDING FACTOR AS TO ITS SUCCESS IMPLEMENTATION THE DECIDING FACTOR AS TO ITS SUCCESS

LITIGATION FOREIGN DEFENDANTS CAN BE SERVED OUTSIDE NIGERIA IF CAUSE OF ACTION FALLS UNDER SITUATIONS SET OUT IN FEDERAL AND STATE HIGH COURT RULES FOREIGN DEFENDANTS CAN BE SERVED OUTSIDE NIGERIA IF CAUSE OF ACTION FALLS UNDER SITUATIONS SET OUT IN FEDERAL AND STATE HIGH COURT RULES THE LOSING PARTY CAN APPEAL ALL DECISIONS OF THE COURT ALL THE WAY TO THE SUPREME COURT THE LOSING PARTY CAN APPEAL ALL DECISIONS OF THE COURT ALL THE WAY TO THE SUPREME COURT APPEAL MAY BE EITHER BY RIGHT OR WITH THE LEAVE OF THE COURT APPEAL MAY BE EITHER BY RIGHT OR WITH THE LEAVE OF THE COURT

ARBITRATION PARTIES UNWILLING TO LITIGATE IN EACH OTHERS’ COURTS PARTIES UNWILLING TO LITIGATE IN EACH OTHERS’ COURTS OFFERS A LOT MORE PROCEDURAL FLEXIBILITY THAN LITIGATION OFFERS A LOT MORE PROCEDURAL FLEXIBILITY THAN LITIGATION CONCEPTION THAT ARBITRATION IS LESS EXPENSIVE THAN LITIGATION CONCEPTION THAT ARBITRATION IS LESS EXPENSIVE THAN LITIGATION ARBITRATORS FEES ARBITRATORS FEES VENUE RENTALS VENUE RENTALS EXPERT FEES EXPERT FEES SOLICITORS AND BARRISTERS FEES SOLICITORS AND BARRISTERS FEES

PLUSES FOR ARBITRATION ARBITRATION PROCEEDINGS ARE CONFIDENTIAL ARBITRATION PROCEEDINGS ARE CONFIDENTIAL NOT PUBLIC DOCUMENTS AND CAN ONLY BE USED IN PROCEEDINGS BETWEEN THE SAME PARTIES IN VERY FEW INSTANCES NOT PUBLIC DOCUMENTS AND CAN ONLY BE USED IN PROCEEDINGS BETWEEN THE SAME PARTIES IN VERY FEW INSTANCES THE RIGHT TO CHALLENGE AWARDS NOT AS OPEN ENDED AS IN COURT JUDGMENTS THE RIGHT TO CHALLENGE AWARDS NOT AS OPEN ENDED AS IN COURT JUDGMENTS

ARBITRAL INSTITUTIONS ARBITRATION CLAUSE OUGHT TO STATE IF ARBITRATION TO BE CONDUCTED UNDER PLATFORM OF ANY INSTITUTION ARBITRATION CLAUSE OUGHT TO STATE IF ARBITRATION TO BE CONDUCTED UNDER PLATFORM OF ANY INSTITUTION SOME INSTITUTIONS ARE SOME INSTITUTIONS ARE INTERNATIONAL CHAMBER OF COMMERCE INTERNATIONAL CHAMBER OF COMMERCE LONDON COURT OF INTERNATIONAL ARBITRATION LONDON COURT OF INTERNATIONAL ARBITRATION AMERICAN ARBITRATION ASSOCIATION AMERICAN ARBITRATION ASSOCIATION PROCEDURAL RULES OF INSTITUTION TO GOVERN THE PROCEEDINGS PROCEDURAL RULES OF INSTITUTION TO GOVERN THE PROCEEDINGS

NOTE IF NO PROVISION IN THE ARBITRATION CLAUSE FOR AN INSTITUTION THEN THE PROVISIONS OF THE ARBITRATION AND CONCILIATION ACT WILL APPLY IF NO PROVISION IN THE ARBITRATION CLAUSE FOR AN INSTITUTION THEN THE PROVISIONS OF THE ARBITRATION AND CONCILIATION ACT WILL APPLY PARTIES MAY REFER DISPUTES TO ARBITRATION EVEN WHERE NO SUCH PROVISION IN THE CONTRACT DOCUMENT PARTIES MAY REFER DISPUTES TO ARBITRATION EVEN WHERE NO SUCH PROVISION IN THE CONTRACT DOCUMENT RULES OF EACH INSTITUTION PROVIDE FOR HOW THE PROCEEDINGS ARE COMMENCED RULES OF EACH INSTITUTION PROVIDE FOR HOW THE PROCEEDINGS ARE COMMENCED

ARBITRATION AND CONCILIATION ACT SECTION 17 – COMMENCEMENT ON DATE REQUEST IS RECEIVED BY THE OTHER PARTY SECTION 17 – COMMENCEMENT ON DATE REQUEST IS RECEIVED BY THE OTHER PARTY SECTION 54 – 1958 NEW YORK CONVENTION FOR ENFORCEMENT OF FOREIGN AWARDS SECTION 54 – 1958 NEW YORK CONVENTION FOR ENFORCEMENT OF FOREIGN AWARDS METHODS OF AWARD ENFORCEMENT METHODS OF AWARD ENFORCEMENT GROUNDS FOR REFUSING RECOGNITION OR ENFORCEMENT GROUNDS FOR REFUSING RECOGNITION OR ENFORCEMENT

ALTERNATIVE DISPUTE RESOLUTION THE LAGOS MULTI-DOOR COURT HOUSE THE LAGOS MULTI-DOOR COURT HOUSE NEGOTIATION AND CONFLICT MANAGEMENT GROUP NEGOTIATION AND CONFLICT MANAGEMENT GROUP LMDC AND NCMG WORK TOGETHER TO PROVIDE LMDC AND NCMG WORK TOGETHER TO PROVIDE MEDIATION SERVICES MEDIATION SERVICES ARBITRATION SERVICES ARBITRATION SERVICES EARLY NEUTRAL EVALUATION SERVICES EARLY NEUTRAL EVALUATION SERVICES

MEDIATION TO FIND AN AGREEMENT OR SOLUTION BY TALKING TO TWO PEOPLE OR GROUPS IN CONFLICT TO FIND AN AGREEMENT OR SOLUTION BY TALKING TO TWO PEOPLE OR GROUPS IN CONFLICT CHARTERED INSTITUTE OF ARBITRATION HAS GUIDELINES FOR CONCILIATION AND MEDIATION CHARTERED INSTITUTE OF ARBITRATION HAS GUIDELINES FOR CONCILIATION AND MEDIATION

WHERE VIABLE OPTION DESIRE TO MAINTAIN COMMERCIAL RELATIONSHIP DESIRE TO MAINTAIN COMMERCIAL RELATIONSHIP PUBLICITY SHY PUBLICITY SHY REALIZATION THAT LITIGATION CAN BE A DRAIN ON TIME AND RESOURCES REALIZATION THAT LITIGATION CAN BE A DRAIN ON TIME AND RESOURCES REALIZATION THAT LITIGATION UNPREDICTABLE REALIZATION THAT LITIGATION UNPREDICTABLE MUTUAL INTEREST IN A QUICK RESOLUTION OF THE CONFLICT MUTUAL INTEREST IN A QUICK RESOLUTION OF THE CONFLICT

OPTION NOT VIABLE DISPUTE LAW BASED DISPUTE LAW BASED PRECEDENT IN FAVOUR OF ONE PARTY PRECEDENT IN FAVOUR OF ONE PARTY LACK OF COMMITMENT TO RESOLUTION LACK OF COMMITMENT TO RESOLUTION WISH TO DELAY THE RESOLUTION WISH TO DELAY THE RESOLUTION UNEQUAL BARGAINING POSITIONS UNEQUAL BARGAINING POSITIONS CREATION OF LEGAL PRECEDENT DESIRABLE CREATION OF LEGAL PRECEDENT DESIRABLE BELIEVE THAT LITIGATION WILL BRING ABOUT A COMPLETE VINDICATION BELIEVE THAT LITIGATION WILL BRING ABOUT A COMPLETE VINDICATION

UTILISING MEDIATION CLAUSE IN THE CONTRACT DOCUMENT PRECLUDING LITIGATION OR ARBITRATION UNTIL ADR EXPLORED CLAUSE IN THE CONTRACT DOCUMENT PRECLUDING LITIGATION OR ARBITRATION UNTIL ADR EXPLORED AGREEMENT TO SEEK MEDIATION AFTER CONFLICT AGREEMENT TO SEEK MEDIATION AFTER CONFLICT AGREEMENT TO SEEK MEDIATION DURING ARBITRATION OR LITIGATION PROCEEDINGS AGREEMENT TO SEEK MEDIATION DURING ARBITRATION OR LITIGATION PROCEEDINGS

ENFORCING MEDIATION CLAUSES DIFFICULT IF ONE PARTY OPTS FOR LITIGATION DIFFICULT IF ONE PARTY OPTS FOR LITIGATION ACCESS TO COURTS A CONSTITUTIONAL RIGHT ACCESS TO COURTS A CONSTITUTIONAL RIGHT PARTY HAS RIGHT OF ELECTION PARTY HAS RIGHT OF ELECTION GARBA V UNIVERSITY OF MAIDUGURI GARBA V UNIVERSITY OF MAIDUGURI ADEKUNLE V UNIVERSITY OF PORT HARCOURT ADEKUNLE V UNIVERSITY OF PORT HARCOURT

CONCILIATION THE PROCESS OF TRYING TO GET PEOPLE TO AGREE THE PROCESS OF TRYING TO GET PEOPLE TO AGREE ARBITRATION AND CONCILIATION ACT HAS PROVISIONS FOR CONCILIATION ARBITRATION AND CONCILIATION ACT HAS PROVISIONS FOR CONCILIATION SOME INSTITUTIONS HAVE RULES FOR CONCILIATION SOME INSTITUTIONS HAVE RULES FOR CONCILIATION THE INTERNATIONAL CHAMBER OF COMMERCE RULES OF CONCILIATION THE INTERNATIONAL CHAMBER OF COMMERCE RULES OF CONCILIATION THE UNCITRAL CONCILIATION RULES THE UNCITRAL CONCILIATION RULES

ARBITRATION AND CONCILIATION ACT PROCESS INITIATED BY SENDING REQUEST TO THE OTHER PARTY PROCESS INITIATED BY SENDING REQUEST TO THE OTHER PARTY DATE OF COMMENCEMENT IS WHEN THE REQUEST IS ACCEPTED DATE OF COMMENCEMENT IS WHEN THE REQUEST IS ACCEPTED PARTIES TO REFER CONFLICT TO CONCILIATION BODY PARTIES TO REFER CONFLICT TO CONCILIATION BODY PROCEEDINGS OR RECORD OF SETTLEMENT NOT A BAR TO LITIGATION OR ARBITRATION PROCEEDINGS OR RECORD OF SETTLEMENT NOT A BAR TO LITIGATION OR ARBITRATION

ICC RULES OF CONCILIATION SINGLE CONCILIATOR SINGLE CONCILIATOR REQUEST IS MADE BY APPLYING TO THE ICC SECRETARIAT REQUEST IS MADE BY APPLYING TO THE ICC SECRETARIAT OTHER PARTY HAS FIFTEEN DAYS TO DECIDE OTHER PARTY HAS FIFTEEN DAYS TO DECIDE PARTIES RESPONSIBLE FOR FEES IN EQUAL SHARES PARTIES RESPONSIBLE FOR FEES IN EQUAL SHARES TERMINATION TERMINATION SETTLEMENT AGREEMENT SETTLEMENT AGREEMENT REPORT BY CONCILIATOR THAT CONCILIATION HAS FAILED REPORT BY CONCILIATOR THAT CONCILIATION HAS FAILED PARTY PULLING OUT OF THE PROCESS PARTY PULLING OUT OF THE PROCESS

UNCITRAL CONCILIATION RULES WRITTEN REQUEST SENT BY A PARTY TO ANOTHER WRITTEN REQUEST SENT BY A PARTY TO ANOTHER ACCEPTANCE REQUIRED WITHIN THIRTY DAYS ACCEPTANCE REQUIRED WITHIN THIRTY DAYS SINGLE OR THREE CONCILIATORS SINGLE OR THREE CONCILIATORS SUSPENSION OF RIGHT TO ARBITRATE OR LITIGATE DURING PROCESS SUSPENSION OF RIGHT TO ARBITRATE OR LITIGATE DURING PROCESS PARTIES RESPONSIBLE JOINTLY AND SEVERALLY FOR FEES PARTIES RESPONSIBLE JOINTLY AND SEVERALLY FOR FEES TERMINATION TERMINATION SETTLEMENT AGREEMENT SETTLEMENT AGREEMENT FAILURE OF AND INABILITY TO REVIVE PROCESS FAILURE OF AND INABILITY TO REVIVE PROCESS WRITTEN DECLARATION TO CONCILIATOR THAT PROCESS TERMINATED WRITTEN DECLARATION TO CONCILIATOR THAT PROCESS TERMINATED CONFIRMATION BY ONE PARTY TO CONCILIATOR THAT PROCESS HAS TERMINATED CONFIRMATION BY ONE PARTY TO CONCILIATOR THAT PROCESS HAS TERMINATED

MINI-TRIAL OR EXECUTIVE TRIBUNAL PARTIES PRESENT ISSUES IN DISPUTE TO EXECUTIVES OF BOTH PARTIES PARTIES PRESENT ISSUES IN DISPUTE TO EXECUTIVES OF BOTH PARTIES NEUTRAL CHAIRMAN NEUTRAL CHAIRMAN LEGALLY ENFORCEABLE DOCUMENT PREPARED LEGALLY ENFORCEABLE DOCUMENT PREPARED PROCESS NOT APPROPRIATE FOR DISPUTES INVOLVING CREDIBILITY OF PERSONNEL PROCESS NOT APPROPRIATE FOR DISPUTES INVOLVING CREDIBILITY OF PERSONNEL

TEXACO V BORDEN $200 MILLION ANTI-TRUST SUIT OVER NATURAL GAS CONTRACT $200 MILLION ANTI-TRUST SUIT OVER NATURAL GAS CONTRACT 300,000 DOCUMENTS IN DISCOVERY FROM DEFENDANT 300,000 DOCUMENTS IN DISCOVERY FROM DEFENDANT EACH LAWYER ALLOWED ONE HOUR TO PRESENT HIS CASE BEFORE VICE – PRESIDENTS OF EACH COMPANY EACH LAWYER ALLOWED ONE HOUR TO PRESENT HIS CASE BEFORE VICE – PRESIDENTS OF EACH COMPANY TECHNICAL ADVISERS ASSISTED BY THIRD PARTY NEUTRAL TECHNICAL ADVISERS ASSISTED BY THIRD PARTY NEUTRAL ISSUES RESOLVED IN TWO WEEKS WITH NEW GAS SUPPLY CONTRACT NEGOTIATED AS A BONUS ISSUES RESOLVED IN TWO WEEKS WITH NEW GAS SUPPLY CONTRACT NEGOTIATED AS A BONUS

WISCONSIN ELECTRIC POWER COMPANY AND AMERICAN CAN $41 M CLAIM WITH $20 M COUNTERCLAIM $41 M CLAIM WITH $20 M COUNTERCLAIM JUDGE - THIRD PARY NEUTRAL GAVE VIEWS ON LIKELY OUTCOME JUDGE - THIRD PARY NEUTRAL GAVE VIEWS ON LIKELY OUTCOME SETTLEMENT WITHIN THREE MONTHS SETTLEMENT WITHIN THREE MONTHS 75 DAYS OF TRIAL AND MONTHS OF DISCOVERY AND INSPECTION AND ADVISERS FEES SAVED 75 DAYS OF TRIAL AND MONTHS OF DISCOVERY AND INSPECTION AND ADVISERS FEES SAVED

EXPERT DETERMINATION USE OF EXPERTS TO SETTLE TECHNICAL AND VALUATION DISPUTES USE OF EXPERTS TO SETTLE TECHNICAL AND VALUATION DISPUTES PARTIES AGREE TO INSTRUCT A THIRD PARTY ON SPECIFIC ISSUE PARTIES AGREE TO INSTRUCT A THIRD PARTY ON SPECIFIC ISSUE DECISION OF EXPERT ONLY ENFORCEABLE AS A MATTER OF CONTRACT DECISION OF EXPERT ONLY ENFORCEABLE AS A MATTER OF CONTRACT SERVICE OFFERED BY LCIA, ICC AND CEDR SERVICE OFFERED BY LCIA, ICC AND CEDR

CONCLUSION ADR CLAUSES NOT LEGALLY ENFORCEABLE ADR CLAUSES NOT LEGALLY ENFORCEABLE SETTLEMENT REACHED NOT ENFORCEABLE IF ONE PARTY BALKS SETTLEMENT REACHED NOT ENFORCEABLE IF ONE PARTY BALKS NEED TO COUCH SETTLEMENTS IN CONTRACTUAL TERMS AND THEN EXECUTE NEED TO COUCH SETTLEMENTS IN CONTRACTUAL TERMS AND THEN EXECUTE WOULD REQUIRE FRESH LEGAL ACTION TO ENFORCE WOULD REQUIRE FRESH LEGAL ACTION TO ENFORCE