Young ICSID Profiles Part Six - Focus on Africa
Young ICSID is pleased to share the sixth installment of its profiles of young professionals in the field of international investment law and dispute settlement. Each issue examines practical issues related to building a career and skill set from the perspective of young professionals from around the world.
In this issue, we had the pleasure of interviewing three practitioners with extensive experience in arbitral practice on the African continent: Victoria Kigen, Case Counsel at the Nairobi Centre for International Arbitration (NCIA); Obioma Ofoego, Senior Associate at Quinn Emanuel Urquhart & Sullivan; and Inyene Robert, Senior Associate at Aluko & Oyebode.
When did you know you wanted to pursue a career in international law—and what sparked that interest?
Victoria: My journey has not been easy. Born and raised in a Kenyan village, English was not my primary language. My parents believing in the importance of education, with sacrifice sent me to study in Nairobi. Despite the struggles of fitting in to such a huge city and learning English during my almost teen years, I performed exceptionally well and secured an opportunity to attend one of the prestigious law schools in Kenya, the Catholic University of Eastern Africa (CUEA). I had been enthusiastic about the practice of law since childhood—having watched the Kenyan legal TV show “Vioja Mahakamani.” At CUEA I developed an interest in and studied courses on international law. My interest was further sparked while doing my pupillage/internship at a Kenyan law firm that represented parties in arbitration where I developed a desire to learn more about the practice. It was then that I decided to pursue an LL.M. in international arbitration law having received an opportunity to pursue the degree at the University of Miami School of Law.
Obioma: I come from a Nigerian-Irish-British background, speak a number of languages, and before becoming a lawyer worked as an academic in African literature and for UNESCO in the field of education and cultural policy. So the pursuit of an “international” career was never in doubt. As for the “law” element, early on in my legal career I went on secondment as a legal adviser to the Legal Directorate of a Ministry of Foreign Affairs. There, I was fortunate enough to work on a myriad of cutting-edge public international law issues as they developed in real time: diplomatic and consular crises, advice on State immunity or the law of international organisations, and both the practical mechanics and interpretation of treaties, to name but a few. It was during that period that my different interests coalesced. There was, as they say, no turning back.
Inyene: My first year in legal practice was spent doing commercial litigation at a law firm in Abuja, Nigeria. While I found litigation to be very interesting, very few of the cases I was involved with had an international component. Even then, I had a yearning to broaden my knowledge and I was interested in the developments in cross-border disputes. This informed my decision to undertake an LLM at the University of Warwick with an international focus which exposed me to a different perspective in some areas of law which I had minimal interaction with, and even areas of law I had interacted with but had not explored on an international level, such as arbitration. Upon concluding my LLM, I was certain I wanted to pursue a career in international law and so when I returned to Nigeria, I chose to join the Lagos office of Aluko & Oyebode.
Tell us about your current role. What does it entail and what does a typical day look like?
Victoria: I am a case counsel at the Nairobi Centre for International Arbitration (NCIA), where I assist the Centre (established in 2013) in the administration of domestic and international disputes under the NCIA Arbitration and Mediation Rules. On a typical day, I receive requests for arbitration and mediation, review them to ensure that they comply with the NCIA Rules, and draft response letters to the requesting party. I also assist in the running of arbitrator conflict checks before their appointment by the Centre.
Normally, a case counsel is appointed to oversee a particular case. As such, I coordinate case correspondence, organize and attend hearings, ensure the timelines are kept by the parties and the tribunal, and handle the case finances. I also keep records of the Centre’s dispute filings for our Annual Caseload Report.
I also handle applications for joining the NCIA Panel of Arbitrators and Mediators, prior to their consideration and approval by the accrediting committee.
In addition, I conduct research on trending topics in arbitration and draft research papers for publication on behalf of the Centre.
My work also entails being part of the government of Kenya delegation and advisory team in the United Nations Commission on International Trade Law (UNCITRAL) Working Group II, Africa Continental free Trade Area (AfCFTA) negotiations, among others.
Obioma: I am based in the Paris office of Quinn Emanuel Urquhart & Sullivan LLP and play an active role in the firm’s Africa practice. At any one time, I will be working on a number of arbitrations, often with an Africa dimension. A typical day may involve producing and supervising written submissions, procedural and client correspondence, leading discussions with technical and quantum experts, or participating in procedural conferences and hearings—or otherwise travelling for business development purposes. I am also part of the recruitment team for trainee lawyers and am always on the look-out for excellent candidates (including, of course, from Africa).
Inyene: I am a Senior Associate in the Dispute Resolution Team of the law firm of Aluko & Oyebode. I lead a team of associates in our litigation and arbitration team. That means I am responsible for managing clients, meeting their commercial needs, protecting their interests, developing case strategies, doing the heavy lifting on generating work product, supervising and mentoring junior associates, and business development.
My typical day starts off with stopping by at my local parish for mass, running through my to do list, setting out tasks to be accomplished for the day, heading to court for anything from a routine motion to a trial, returning to the office to prepare or review drafts or opinions or court processes, client meetings, internal and administrative meetings, and preparing for a hearing the next day. Sometimes, when I get lucky, I can make it to gym before I call it a day and it starts all over again.
Indicate one accomplishment in your professional journey so far that you are especially proud of and why.
Victoria: I have had many accomplishments in my professional journey but one that I can single out is passing the New York Bar exams and being sworn in as a New York attorney in January 2023. It was an incredibly challenging exam since the examinations were different from what I was used to at the Kenyan law schools. Currently being a dual-licensed attorney of Kenya and New York, is my best achievement so far and one that I am especially proud of.
Obioma: A combative cross-examination I conducted as a junior associate in an ICSID case: three hours, technical subject-matter, high stakes. I had conducted cross-examinations in domestic courts before then, but the complexity of the legal issues and the environment made this quite different—and great fun. I am proud to have done a good job and held my own. But I should also add that it would not have been possible without the trust of the partner leading me on the case—a good lesson in team leadership.
Inyene: I was quite proud to complete the Qualified Lawyers Transfer Scheme and be enrolled as a Solicitor of the Senior Courts of England and Wales. I am proud of this achievement because I had set out to accomplish this for some time. When I finally took it on, it was under very difficult circumstances, but I was able to pull through.
What do you wish they had taught you in law school that you had to learn on your own?
Victoria: I wish I were taught about the importance of mentorship. I came to learn about this while pursuing my LL.M. and I must honestly say that I wish I had known about it sooner. I have been both, mentee and mentor. I must attest my success to many mentors—I could not have done it without them. The earlier you get mentors in your career, the better.
Obioma: To be fair to law school, some things (and often the most elusive, important things) cannot be taught, and there is no surrogate for experience. The crucial thing for a lawyer to find is their own voice: on the written page, with clients, before a tribunal. If law schools succeed in providing students with the tools to achieve that, they will have done well.
Inyene: Practical application of the law. I’ve learned from working on cases involving interests in several jurisdictions that legal issues are often very nuanced and require creative solutions. At law school, the curriculum is taught in a very theoretical way, and it does not do enough, in my view, to prepare aspirants to the bar for the complexity they may face working on the kinds of cases that I have. I wish I had the opportunity to learn to apply various principles of the law practically to issues while in law school rather than on the job.
What two tips would you give to a dispute resolution lawyer having their first arbitration in East or West Africa? Any do’s and don’ts for practitioners unfamiliar with the region?
Victoria: A dispute resolution lawyer having their first arbitration in East Africa should first familiarize themselves with the law of that country as well as the jurisprudence by the courts as regards arbitration. Secondly, cultural familiarity and acknowledgement is essential so as to win the confidence of the parties.
Do: as early as possible, ensure that both your English and French are up to scratch. It will open up the region for you and help you to discern the deeper commonalities that traverse the “common law”/“civil law” divide. If you can throw in Portuguese, so much the better. You won’t regret the effort.
Don’t: bring anything but your A-game. The African dispute-resolution legal market is highly sophisticated and competitive, and will be even more so over the coming years, with well-documented increases in international trade and cross-border investment providing for greater recourse to arbitration.
Inyene: Sunscreen! That’s a joke. Be conscious of right of audience/legal representation rules applicable in each jurisdiction. For instance, in Nigeria, Section 51(1) of the Nigerian Oil and Gas Industry Content Development Act 2010 requires that all operators, contractors and other entities engaged in the operation, business or transaction in the Nigerian oil and gas industry retain only services of Nigerian legal practitioners or a firm of Nigerian legal practitioners.
Also, be conscious of the dualism of the legal systems within West Africa. As West Africa is composed of both anglophone and francophone countries, some countries have civil law or common law legal systems. This will impact the legal culture of the arbitrators and the treatment of procedural and substantive issues.
What trend or innovation related to international arbitration on the African continent do you feel is particularly noteworthy?
Victoria: The Africa Arbitration Academy has been in pursuit of innovative projects such as developing the Protocol on Virtual Hearings in 2020 as well as a Model BIT in 2022. The Model BIT has the goal of serving as a source of cohesion for African States’ ISDS reforms—and I am excited to see African States’ journeys in achieving progressive reforms. Several arbitral institutions, such as the NCIA, have adopted the Protocol on Virtual Hearings, thus enhancing the digitalization of dispute resolution processes in African Centres.
Obioma: The contractualisation of environmental, social, and corporate governance (ESG) principles. By way of example, the existence of strong constitutional protections concerning the environment in a number of African jurisdictions has created a complex and evolving interplay between public and private law principles, increasingly visible in contracts between private companies and States or State-owned enterprises relating to the use and exploitation of public natural resources. Arbitration is a privileged forum for the development of that relationship.
Inyene: The Africa Arbitration Academy Protocol on Virtual Hearings in Africa was impactful especially during the Covid-19 period. I personally utilized the protocol in one of my arbitrations and I am convinced that it will remain relevant post Covid-19.
Another innovation is the Africa Arbitration Academy Model Bilateral Investment Treaty for African States 2022. The model represents the reform of investor-State dispute settlement currently taking place in various African States, such as South Africa which is renegotiating its bilateral agreements to enable a more balanced relationship between investors and host States and to protect local culture and values.
What would you say is a common myth or misconception about arbitration in Africa?
Victoria: The common misconception about arbitration in Africa is that there are not enough African arbitration practitioners within the continent. I must say that this is a myth as we have many trained, experienced, and specialized arbitration practitioners in Africa. I can attest to this by virtue of the existing panel of arbitrators in various arbitral institutions whose knowledge, training, experience, and specialization in the practice of arbitration is unquestionable. Further, there have been several arbitration conferences within the continent over the years, and the numerous numbers of attendees is a testimony of the great interest and presence of specialized arbitration practitioners within the region.
Obioma: Historically, one of the most damaging misconceptions (to use a euphemism) has been that the lack of diversity in our field reflected a lack of talent—a misconception, I might add, which was regrettably not confined to the law. Times are changing, of course—but I would venture to suggest that when African arbitrators, counsel and/or experts are routinely appointed for matters involving African and non-African parties alike, we will really know that times have changed for the better.
Inyene: I think there’s a myth that arbitration was introduced into Africa during colonial times. For instance, in Nigeria, arbitration would be said to have been introduced through English law. However, historically, there was a practice of disputants submitting to a third party for a binding resolution to their disputes and what was introduced in colonial times was merely formal statute. This leads me to a common misconception that there is a limitation of talents in Africa to deal with complex and high value disputes.
What is your motto in life?
Victoria: My motto in life is to never give up, and when you fail, wake up and try again, as you will regret it if you do not.
Obioma: As with all things where there is an embarrassment of riches, I would not want to choose only one. But at busy times, I like: “Run A Tight Ship”. It is the only way to enjoy this job and everything else that life has to offer.
Inyene: Strive for perfection and forgive your imperfections.
The opinions expressed in this publication are those of the interviewees. They do not purport to reflect the opinions or views of ICSID, nor those of the organizations with which the interviewees are associated or employed.