NITDA Framework on Alternative Dispute Resolution (ADR) for the ICT Sector and the Prospects of Ethical, Time-bound Resolutions

“An ounce of mediation is worth a pound of arbitration and a ton of litigation” __ Joseph
Grynbaum

By Ernest Ogezi

Everyday online transactions within and across international borders continue to
grow in intensity and complexity. The nature of ICT makes the world borderless,
therefore disputes pertaining to trade and Intellectual property rights such as
patents, trademarks, copy-rights – including software – or know-how, can quickly
spiral into complex legal situation. ICT disputes are multifaceted as they are
technical; for this reason, when parties to ICT transactions get involved in
conflicts, the most important thing to do is find a time- and cost-effective manner
to resolve the issues in order to avoid disruption of technology development,
investment and consumer interests. Conventional courts are not often well
equipped to handle the intricacies because conflicts are complex and require
expertise.

Alternative dispute resolution (ADR) mechanisms, including mediation, arbitration
expedited arbitration and expert determination, offer parties and their lawyers high-
quality, efficient and cost-effective ways to resolve their ICT disputes out of court,
especially contractual disputes involving parties from different jurisdictions. Some
important advantages of ADR are neutrality and expertise. In neutrality, ADR
assumes a neutral law, language and institutional culture of all parties, taking away
the home court advantage that would have been enjoyed by parties in court-based
litigation. Expertise borders on achieving high-quality solutions in ICT disputes
where judges may have the relevant knowledge in key areas. Parties can appoint
arbitrators, mediators or experts with specific proficiency in the relevant legal,
technical or business area.

Delay in the resolution of ICT conflicts has the ability of putting a whole project at
risk. This underpins the importance of economically viable and time-bound
resolution of conflicts. ADR mechanisms provide short and specific timelines
which the parties can further adapt. Mechanisms like the expedited arbitration fast-
track actions to achieve even faster solutions. Alternative dispute resolution (ADR)
helps avoid the expense and complexity of multi-jurisdictional legislation and the
risk of inconsistent result by allowing parties to settle in a single procedure.

According to Statista, the number of internet users in Nigeria as at 2020 had
reached 99.05 million. The business ecosystem within the Nigerian cyberspace is
bolstering and a lot of social entrepreneurs are emerging, offering service and
product transactions to a variety of customers or consumers. International online
transactions are also growing in Nigeria. It is inevitable that conflicts will result as
a result of the use of the internet and, Information and Communication Technology
(ICT). But conflicts occur, it is necessary to follow expert, time- and cost-effective
procedure for resolution.

Nigeria’s judicial system is currently ill-equipped to handle disputes relating to
parties in an ICT setting, litigations can be very expensive while judges and
lawyers lack the requisite technical expertise to litigate ICT-related conflicts. This
is what informed the development of the framework on Alternative Dispute
Resolution (ADR) developed by the National Information Technology
Development Agency (NITDA). The ADR Framework defines “ICT Conflict
Prevention” as a body that ensures that conflicts in an agreement or ongoing ICT
projects are identified at an early stage, resolved and prevented from escalating
further. Within the NITDA ADR framework ICT disputes “refers to disagreements
between parties who agreed concerning hardware (computer components and
peripheral devices), software, IT consultancy, cloud services or internet services.”
The elaborate ADR framework also encapsulates the establishment of Online
Dispute Resolution (ODR) platform. The ODR platform is seen as the most
innovative and interesting aspect of the ADR given that it is an online dispute
resolution platform. The ODR platform allows for resolving of ICT disputes online
from filling, neutral appointment of arbitrators, online discussions and rendering of
binding settlements.

The ADR framework has provision for the establishment of a body specialized in
the field of organization and ICT and made up of experts in IT conflict
management that will offer ADR options to resolve and where necessary settle
disputes in ICT related matters. The objectives of the body are:
i. To inform the respondent party about the complaint with the aim of settling
the dispute between parties. The body shall provide an electronic complaint
form to the parties.
ii. To enhance cross border transactions and market integration online while
providing means of resolving disputes where it arises in the course of a
transaction.

iii. To provide the parties and ADR entity with the translation of information
which is necessary for the resolution of ICT disputes
iv. To make online transactions safer and fairer through access to dispute
resolution tools by providing a feedback system that allows the parties to
express their views on the functioning of the ODR platform.
v. To make publicly available general information on ADR as a means of out-
of-court dispute resolution mechanism and to provide information on how to
submit complaints through the ODR platform.

A complaint is valid to the extent that the ICT agreement initially contained
arbitration clause accepting that all disputes should be resolved by the agency or
parties voluntarily consent to applying ADR to resolve ICT disputes. The
complaining party must fill in the electronic complaint form and ensure that the
there is sufficient information as to the cause of the dispute. Data processed
through the electronic complaint form and its attachment must be accurate,
relevant, and not excessive.

The ADR Framework will also incorporate the Data Protection Regulation 2019 in
the access, collection and processing of users for dispute management and
resolution. Strict confidentiality and appropriate technical and organizational
measures to ensure information security within the ADR body and the online
dispute resolution platform.

Through the scope and applicability of the ADR framework NITDA will be able to
resolve all technical, commercial or legal conflicts and apply to disputes on
contractual obligations stemming from hardware and software transactions,
consultancy, telecommunication the internet, online sales and service contracts
between consumers within Nigeria and a trade established in Nigeria using the internet services.