AN ANALYSIS OF THE PROCESS OF ALTERNATIVE DISPUTE RESOLUTION IN CORPORATE MANAGEMENT

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dc.contributor.authorEl-Yakubu, Sadiq Ibrahim
dc.date.accessioned2023-12-14T06:16:48Z
dc.date.available2023-12-14T06:16:48Z
dc.date.issued2018-11-12
dc.description.abstractThis project conceptualized on Alternative Dispute Resolution (ADR) which is usually considered to be alternate to litigation. It has an informal, non-adversarial and confidential process whereby parties voluntarily determine the process to adopt in resolving their disputes. Traditionally, our local chiefs, church leaders and some stakeholders may act as either a mediator or an arbitrator to resolve disputes between disputants. This research point out several forms of ADR, which include negotiation, mediation, conciliation, arbitration and other hybrid process. This research work identify the rationale for adopting ADR as a means of settling corporate issues than a court trial, to identify the skills and strategies in ADR; these are the expertise a negotiator or mediator requires on the negotiation/mediation table to get the desired result, to make a functional recommendations which will minimize conflicts and enhance egalitarian corporations. However, it has been observed in corporate Management that Company restructuring and the rule in Foss v Harbottlehas often led to disagreement and subsequent gridlock. The rule provides that, where a wrong is done to the Corporate right of members, the wrong is strictly speaking, done to the company, that is, the majority of members to decide whether it should be treated as a wrong which should be redressed and the majority can validly decide not to redress such wrong. This majority rule and minority rights has often lead to deadlock in company relations, hence, this work looks for ways of resolving this dispute internally without going through court trial at the first instance. In Re Yenidje Tobacco Company Limited where the company was wind up under just and equitable rule, despite the fact that the company was making large profits notwithstanding. This position would have been different if these directors had altered their position to focus on the interest of the company rather than their aggressive adulatory dispositions which led to the winding up of the company .Conflicts in organisations are inevitable, consequently, directors, creditors, shareholders, employers and employees should rather seek for ways of resolving their disputes amicably at 'first instance through ADR processes, other than going to court for winding up of the affected company at each slightest provocation. Observation was made that Alternative Dispute Resolution could succeed only if claimants and defendants have motivation to make the process work, forcing both sides to participate in such a process can impede the success of the process. This research recommended that there should be legal basis for ADR which needs legal authorization for assessing the feasibility of an ADR program and the appropriate design for such program. xii nen_US
dc.identifier.citationA. I. Chukwuemerie, ‘The Nature of Arbitration and ADR’s, (a paper presented to NBA, Law week, Abakaliki Branch on 2-3rd April, 2009), Pp. 2-3. Arbitration and Conciliation Act Ss. 1-36 deals with arbitration while Ss.37-42 provide for Conciliation and pt.III deals with Additional Provisions relating to international commercial arbitration and conciliation. n Arbitration and Conciliation Act, Cap. A18, LFN, 2004 and UNCITRAL Arbitration Rules, General Assembly Resolution 31/98. Arbitration is not purely ADR, however, since it is not purely litigation, it is seen as alternative to litigation. Broches, ‘Recourse Against the Award: Enforcement of the Award, UNCITRAL project for a Model Law on international Commercial Arbitration’, ICCA Congress Series No. 2, (1984), P- 208. Cited by E.O. Ezike, (LAW 512), op cit, p. 76. E. O. Ezike, (LAW 512), ‘Lecture Notes on Law of Arbitration 1’, (Enugu: Faculty of Law, University of Nigeria, Enugu 2003) p. 4. E. O. Ezike, (LAW 512), ‘Lecture Notes on Law of Arbitration P, (Enugu: Faculty of law, University of Nigeria 2003), pp 8. Fisher, Roger, Ury, Wiliam, & Paten, Bruce (1991). Getting to yes: Negotiating agreement without giving in Penguin: New York. Chapter 2. J. M. Mustil and S.C. Boyd, The Law and Practice of Commercial Arbitration in England, lsl ed. (London: Butterworths, 1989), P. 417, this is because there is usually an implied promise to perform a valid award. n J. O Orojo, Company Law and Practice in Nigeria, 4th ed. (Lagos: Mbeyi& Associates (Nig) Ltd, 1992), Pp 1-575. J.O. Orojo, Company Law and Practice in Nigeria, 4th ed. (Lagos: Mbeyi& Associates (Nig) Ltd, 1992) Pp.350-351. This rule is now set down in S.299 of Companies and Allied Matters Act, Cap C.20 LFN, 2004 (hereinafter referred to as CAMA).Jenkins, ‘The Peacemakers’, cited by Frank Elkouri, et al: how Arbitration Works, (United States of America, 3rd ed., 1979), p.l. K. Nwosu, ‘ADR Processes’ in ADR Course Materials for Professional Foundation Course 1 (Abuja: DCON Consulting, 2005), Pp 29-40 K. Nwosu, “Advance Negotiations (the process)”, in ADR Course Materials for Association of Professional Negotiators and Mediators on Professional Foundation Course, Part II (Lagos: DCON Consulting, 2006) P. 10. Kevin Nwosu, ‘Advance Negotiation (the process) in ADR Course Materials for Association of Professional Negotiators and Mediators on Professional Foundation Course Part II, (Lagos: DCON Consulting, 2006), p.8. M. O. Sofawora, Modem Nigerian Company Law, 1st ed. (Benin: Amfitop Liason Office, 1998), Pp 1-200. M.O. Sofawora, ‘Modem Nigerian Company Law lsted’, (Benin: Amfitop Liason Office, 1998), p.20 (1843) 2 K.B at 461. M.O. Sofawora, Modem Nigerian Company Law, lsted, (Benin: Amfitop Liason Office, 1980) P.217. Roli H., ‘Mediation Practice and Procedure’ in ADR Course Materials for Association of Professional Negotiators and Mediators on Professional Foundation Course, Part II (Lagos: DCON Consulting, 2006), p.l3. Segun .0. The Effective Mediator lsted, (Nigeria Hephzibah Publishers 2005) p. 30. Sustac. Z, et al, Alternative ways of solving conflicts, (USA: University Press, n.d), p. 242. Halsbury’s Law of England, 4th ed. (Vol. 2, n.d) p.255. JOURNALS / ARTICLES Article 32 (1) of Arbitration Rules which is the same as Article 21 of UNCITRAL Arbitration Rules. Article 32 (2) of Arbitration Rules. u INTERNET SOURCES Clark, et al, (2000), Outcomes of the MSC Process, (httpAvww.fresnosuperiorcourt.org/altemative_dispute_resolution).Clark, et al., (2005), Outcome of the MSC Process, (www.abanet.org/legalservices/findlegalhelp/fag legalterms.cfm). ForsytheG.H.A.(l ^(^Organizational Ombudsman. (www.ombudsassociation.org/standardsA) J. Gesk, et al (2006), ADR and victim offenders,(http//en.wikipedia.org/wiki/alternative- _dispute_resolution/cite_note-1) J. Geske, et al (2006), ADR and victim offenders, (http://en.wikipedia.org/wiki/Altemative Dispute Resolution/cite-O/cite note-0’). Kakalik,etal.,(l 996),CourtconnectedADR.( http://en.wikipedia.org/wiki/Altemativedisputeresolution/cite note)en_US
dc.identifier.urihttps://keffi.nsuk.edu.ng/handle/20.500.14448/5172
dc.language.isoenen_US
dc.publisherDepartment of Public and International Law, Nasarawa State University, Keffien_US
dc.titleAN ANALYSIS OF THE PROCESS OF ALTERNATIVE DISPUTE RESOLUTION IN CORPORATE MANAGEMENTen_US
dc.typeThesisen_US

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