Talking Legal with TEMPLARS: The SAN Edition

In this special episode of Talking Legal with TEMPLARS, Senior Advocates of Nigeria and Partners, Adewale Atake SAN, Godwin Omoaka SAN, Inam Wilson SAN, and Olufemi Oyewole SAN, unpack some of the pressing issues shaping Nigeria’s legal landscape, spanning arbitration, labour law, insolvency, and taxation.

Key Points from the Discussion

[00:30 – 02:55] Arbitrability of Tax Disputes

• Distinction between tax authority disputes (non-arbitrable) and contractual disputes impacting tax legislation (arbitrable).

• Why the controversy is more theoretical than practical.

[02:56 – 05:15] Investor–State Arbitration

• Nigeria’s exposure vs. other African countries.

• Legal basis for claims: BITs, MITs, FTAs, domestic investment laws, and contracts.

[05:16 – 11:08] The New World of Work

• The evolution of employment: gig economy, platform workers (Uber, Bolt, delivery riders).

• Technology redefining workplace and collaboration (Gen Z work culture, digital teams).

• Labour laws struggling to keep pace with new work models.

[11:09 – 17:00] Insolvency in Nigeria

• Shift from liquidation to rehabilitation under CAMA 2020 & Insolvency Regulations 2022.

• Cross-border insolvency and Nigeria’s ranking improvements.

• Risks to employees and third parties when insolvency is misused.

• Abuse of ex parte orders: freezing assets, disrupting businesses, employee impacts.

• Courts now scrutinising damages undertakings and narrowing scope of freezes.

[17:01 – 23:24] Stabilisation Clauses & Investor Protection

• Policy rationale: ensuring legal and regulatory stability for investors.

• PIA 2021 and Tax Act 2025 restricting broad stabilisation claims.

• Exemptions where taxes are in public interest (environment, safety, climate change).

• Retroactivity: pre-2021 contracts still retain broad stabilisation protections.

[23:25 – 27:35] Investor – State vs. Domestic Arbitration

• Differences: public law disputes (state vs. investor) vs. private law disputes (contractual parties).

• Nigerian treaty practice: first gen vs. second-gen BITs.

• Africa-wide frameworks: AfCFTA & its 2023 Investment Protocol.

• Dispute resolution under AfCFTA: multi-tiered, state-to-state arbitration model.

[27:36 – 35:05] Tax Act 2025 – Specific Concerns

• Section 86 and Decommissioning & Abandonment (D&A) fund deductibility.

• New requirement: 30% of D&A funds must be domiciled in Nigeria for deductibility.

• IOC/industry concerns about compliance and increased costs.

[35:06 – 43:00] Closing Thoughts

• Stabilisation clauses: vital for investor confidence but balanced against the state’s right to regulate.

• Courts and arbitral tribunals expected to adopt a restrictive interpretation post-PIA & Tax Act 2025.

• Emphasis on balancing investor protection with Nigeria’s regulatory and public policy interests.