By definition, under our municipal
law, (The Arbitration and Concilitia Decree No. 11 1988 arbitration is defined
as “Meaning a commercial arbitration whether or not administered by a permanent
arbitrate institution1”. By virtue of the definition above, arbitration under
the Act necessary means commercial arbitration, therefore, international
arbitration means International Commercial arbitration. Commercial arbitration
is that which concerns the relationship of a commercial nature.
The distinction between
international commercial arbitration and other forms of international
arbitration is necessary, this is because, it serve to distinguish arbitrations
(international) relating to commercial nature from arbitrations relating to
states over boundary disputer and other political disputes.
Secondly a state which is a party to
the New York Convention may pursuant to the commercial reservation” reserve its
obligations under the convention only in respect of contracts which are
considered commercial under its national law; thus, for the purpose of
recognition and enforcement of arbitral award under the state’s law, the term
“commercial” must as a matter of law be scrutinized.
An arbitration is international if
a. The parties
to an arbitration agreement, have at the time of the conclusion of the
agreement, their places of business in different countries or;
b. One of the
following places is situated outside the country in which the parties have
their places of business
i. The place
of arbitration, if such place is determined in or pursuant to, the arbitration
agreement
ii. Any place where a substantial part of the
obligation of the commercial relationship is to performed, or the place with
which the subject matter of the dispute is mostly closely connected
c. The parties
have expressly agreed that the subject matter of the arbitration agreement
relates to more than on country; or
d. The parties,
despite the nature of the contract, expressly agree that any dispute arising
from the commercial transaction shall be treated as an international
arbitration4.
Paragraphs (c) and (d) above
indicates that parties to an arbitration can on their own accord decide whether
their arbitration would be international or not when the facts of the relevant
transaction do not obviously reveal any external connection.
International Arbitration has been
defined by the International Law Commission as “a procedure for the settlement
of disputes between states by a binding award on the basis of law and as a
result of an undertaking voluntarily accepted5”. International arbitration has
been the most commonly used method for the settlement of International disputes
and has contributed in no small measure to the development of international
law, and this has not diminished even now that there have the international
court of justice6.
It is the principle of International
law that states “shall settle the international disputes by peaceful means”
pursuant to this principle………
Like in all methods of pacific
settlement in international law arbitration is Udumtary: parties must consent
beforehand to the exercise of jurisdiction by the arbitrators which may be by
ad hoc see the Guinea/Guinea-Bissau Maritime Delimination sace 77 LLR 636 and
the Canadian France Maritime Delimination (1992) 31 ILM 1145, or consent may be
given in advance to a specific procedure as with the permanent court of
Arbitration8.
Anbitration procedure
are not limited to determination of disputes between states
section 57(2) Abriteatition and conciliation Act cap
A18 LFN 2004
year book of international law commission 1953,11,
p.202 p268
Textbook of
international law martin Dixon (oxford uru . press)
Article 2(3) UN chapter. Although expressed to terms
of UN menbes it can be take to rate any
int’l law.
Established by the
1899 and 1907 Hague con. On pacific settlement provides on instrtutimalized
procedure the settlement of int’l dispute by arbitration
An important function
of international arb. And one which the KJ cannot undertake, is to settle of
disputes between states and other bodies having international personality
example multinational corporations. In otherworld, international arbi is
extended to the settlement of disputes between states and corporation or
between states and in exceptional cases individuals claiming against the state.
One of the most important of such arbitration proceed is the international
center for the settlement of investment disputers, which provides a forum for
the settlement of disputes between states and multinational corporations
arrsrey out of muertimate. In addition, there is now also of model rules for
international Commercial Arbitration reflecting the practical importance of
arbitration in the world of commerce.9
Moving away from the machinery of
international arbitration. What are the legal charactistics? In general
parlance, arbitration can denole any settlement achieved by reference to a
third party. However the perm ant count of justice (P.C.J) has indicated in its
adulatory opinion on interpretation of the treaty of Lausanne case arbitration
in international law has a more specific meaning fist, int’l arbitration is a
procedure for of the settlement of the a legal dispute, it is concerned with
the right and obligation of parties and a settlement is achieved by
application of the relevant law to the
case this is not to say that economic and political factors are irrelevant but
rather that they, of themselves, cannot affect the outcome. Like the ICT
international arbitration is concerned primarily with question of intenational
law.11
Secondly, as a general rule arb.
Awards are gen legdlybinding on the parties, once a party has committed itself
to arb. It is under a legal allegation to give effect to the result. Infect
even in absence of enforcement machinery, the majority of arbitration awards
are adhered to decisms of the ICT, they have mhorent.12
Thirdly, parties to international
arb have direct control over both the composition of the panel and its
procedure. This ensures that the panel anyoys the confidence of the parties and
add to the fore of its final award.
9. Textbook on Int’l Law op. G. t. p.2
10. (1925) PCIJ ser. B No 12
11. Ibid P. 270
12. Ibid P.270
The prevalence of
arbitral awards and procedures testifies to the success that the form of
dispute settlement enjoys within the international community.
Finally under international arb.
Courts may review the arbitration agreement where one of the parties is
dissatisfied.13
In normal circumstance an
international arbitration necessarily involves external factors which
ordinarily should make it less attractive to parties, example almost always,
the procedure is conducted wholly or partly abroad, also vital evidence may
have to be obtained from external sources and the arbitration may be
foreigners. All these are bound to rather make the process rather repulsive.
But most times parties resort to
international arbitration as a “Pis aller the best action in the circumstances.
Parties resort to int’l arb as the most realistic compromise, because they
cannot resort to a neutral international court because there is none.
International arbitration must be
distinguished in the Act. However an inference can be asserted from the
definition of international arbitration above to refer to domestic arbitration
as any arbitration which does not come within the definition of international
arbitration.13
11. Textbook on international law, Martin
Dixon (4th ed. Oxford Un. Press 200) p. 271 see also the Senegal/Guinea-Bissau
Award case (1992) 31 UN3
Ejiofor Giaus, the law
of Arbitration in Nig (1st ed. Longman P(1997)P. 135
An Overview of the legal frame work to
recogrution of international (foreign) commercial Arbitral …….. Nigeria legal
system
Commercial arbitration has bcrm a
major concern and attraction in international transactions owing to its speed
and effectiveness in resolving commercial disputes. Having obtained the award
however. The successful party uruld have to enforce the around against his
adversary. The willing of Nigerian courts to enforce foreign arbitratn awards
and the ease or difficulty of doing so and of likely timeseale of the process
of enforcement are issue of immense concern to any foreign person whishing to
enforce an arbitral award in Nigeria.
The United Nations Commission on
International Trade law (UNCTIRAL) model law on int’l comm.. Arb has been
wholly or partially adopted and enacted into national laws of several countries
with diverse constitutional and legal system2. In the case of Nigeria, the law
was enacted in the federation public of Nigeria in 1988 as what was called
Arbitration and concentration act (Op Aiq) LFN 1990 now Arbitration and
conciliation Act cap A18, LFN 2004 (“The Act) this act and treaties governs the
practice of domestics and international arbitrate in Nigeria section 43 of the
Arb. & Con. Act Cap,,,,, LFN 2004 stipulates that part 111 of the Act which
provides for appointment of arbitrators, making of an awards, termination of
proceedings, recognition and enforcement of awards applies only to
international arbitration.3
It is important to
note that part 111 of the ct comprise of section 43-55 these sections gull a
general guideline to the practice of international arbitration in the
federation of Nigeria. Some learned authors have argued that Nigeria should
hold some attraction as a forum or seat, or locus arbitri for the international
arbitrations. Normally, the law of the place of arbitration governs the arbitration
and is characterized as the lex arbitri4
Prof. Ezejiofor Giaus
in his opinim noted that the Nigeria attraction devices from the fact that its
arbitration legislation, the Arbitration and Conciliation Act is an adaptation
of the UNGTRAL Model law on international commercial Arb.
1. Www. Black friars-law cen (last visit
of 9th August, 2013)
2. Chukwumere Andrew 1, studies &
materials international comm. Arb (law house books 2002) p. 85)
3. See section 43 arbitration and
conciliation Act Cap A19 LFN 2004.
4. Ezejiofor Giaus, op. Cit p. 163.
And the UNGTRAL
Rules5. In Nigeria the provision of the model law and the Arbitraturb rule
apply in int’l arbitration as to …….. informed concept of parties autonomy to
deride by themselves all the fundamental question concerning their arbitration
and the miniroal judicial control of the arbitral process. The act specifically
prourded that parties to on int’l arb agreement may stipulate that the dispute
arising from agreement shall be referred to arbitration, in accordance with the
Arbitral Rules6 scheduled to …… the act in accordance with the UNCITRAL Rules
or any other international arbi Rules7. it has been argued that the provision
of the act under 5.4 which manatatrly empowers a court to say proceed 10gs brought
in breach of arbitration agreement is believed to apply to international
arbitration in Nigeria8 while the discretionary power to say proceed under 5.5
is brought to apply to domestic arbitration.