Funke Adekoya SAN practices as an independent arbitrator and litigation consultant in Lagos Nigeria. After obtaining her law degree in Nigeria, she attended the Harvard Law School, Boston, Massachusetts, USA where she obtained her LLM. In addition to her involvement in high-value disputes in the natural resources and construction sectors, she advises international counsel in arbitration related litigation and also often provides international clients with expert witness evidence and opinions on issues of Nigerian law.

What inspired you to pursue a legal career?

My father studied law as a mature student. As a child, I was enthralled, listening to him discussing cases and legal concepts in contract and tort with his informal tutorial group. From then on,I never wanted to be anything other than a lawyer.

What did you find most challenging about entering arbitration practice?

Having the requisite knowledge and expertise in arbitration practice is the first step; however these can only be showcased if one is appointed as either arbitration counsel, expert or arbitrator. Being accepted into what was some twenty years ago essentially a ‘male, pale and stale’ world was challenging as I did not fit into any of the three categories. As the years have passed, I might now be qualified for the ‘stale’ category!

How big is the issue of geographic exclusion in arbitration (i.e. where small states don’t have the infrastructure to participate effectively in arbitration proceedings)? How could this be effectively addressed?

There is a silver lining in every cloud and for covid-19, it was the transition to online evidentiary hearings. These provided the opportunity for greater participation by persons from previously less well known jurisdictions, who would have otherwise had to travel to attend hearings, with the required and sometimes excessive financial implications. The transition to more virtual hearings has however highlighted the need for emerging economies, which are often the base for disputes to upgrade their digital infrastructure and technological support so they can seamlessly participate in arbitration proceedings despite what may be a challenging geographic location.

What do you enjoy most about working in arbitration?

The opportunity to meet and exchange ideas with people from different parts of the world, often from different legal backgrounds is a high point for me. Then again, the exposure to different cultures either through witness evidence in hearings or when attending arbitration conferences, highlights for me the “international” nature of arbitration.

Most Nigerian arbitrators are members of large law firms. Having recently retired from AELEX where as a founding partner you established its Arbitration Practice group, what do you see as the future for independent arbitrators in your jurisdiction?’

While large law firms can provide maximum administrative support to arbitrators, the threat of potential client conflicts may also restrict the ability to appoint the arbitrator. My retirement from AELEX and move to acting as an independent arbitrator points to the fact that there is a life outside of big law. One just has to balance the downside of restricted administrative support against the upside of less potential client conflicts. I think the future of independent arbitrators in Nigeria is bright

To what extent should more be done to improve the transparency of arbitration proceedings?

The UNCITRAL Rules on Transparency in treaty-based investor-state Arbitration already provides for transparency and accessibility by the public to treaty-based investor-state arbitration; an aspect of arbitration where the public have a right to be informed. Where commercial arbitration is involved however, the arbitration community needs to balance the need for transparency against confidentiality, which is one of the prime attractions to arbitration to the commercially minded.

Currently many arbitral institutions are providing information regarding arbitrator availability by publishing suitably redacted caseloads of the arbitrators on their panels. Some also provide redacted decisions on arbitrator challenges. The publishing of redacted awards will also provide training material for up-and-coming arbitrators as to the various styles of writing awards.

You have significant expertise as a litigator. How does this enhance your arbitration practice?

Complex litigation requires the ability to read, digest and organise massive amounts of material in the shortest possible time. Oral advocacy skills combined with the ability to think on your feet are also prerequisites for a litigator. They have come in handy in arbitration practice.

Where, in your opinion, does the future of the practice area lie?

As the economies of the world focus on Africa and other developing markets as the last unexplored area of investment opportunity, I predict that there will be an upsurge of Africa-originating disputes. Growing nationalism all over the world will result in pressure on the arbitration community for the engagement of more racially diverse participants in arbitration practice, both as counsel and as arbitrators.