The upturn in comm. activities in
Nig-and in particularly its commercial hub, Lagos over the past decades has in
reflected in an increase need 4 comm. Dispute resolution. Investments in the
more lucrative sectors of the Nigeria eco. Such as oil and gas, telecoms and
hospitality are contractual, and more flen than not arbitrating is the despite
resolution mechanism choice, arb seat may be in Nigeria or in some distance
abroad.
Where the seat of an int’l comm.
Arb. Is x pressed 2 be in Nigeria in most cases, the parties close Lagos is
often chosen ……. Of the parties need 4 a sophisticated instructional regime;
the large pool of arb specialist practicing in Lagos; and the customused
facilities provided at the regional centre of int’l Arb.
In recent past there have been
growing concerns about the satisfactory outcome of international commercial
arbitration in Nigeria ranging from the enforceability of arb clauses in
commercial agreement, to the perceived sluggishness of the national courts in
dealing with interim applications enforcement of the final award and other
matter.
There are certain workable arbitral
framework to the practices of international arbitration in Nigeria. We shall
….. do a brief discussion on these.
6. Ibid,
the rules are industrial to the UNGTRAL Arbitration Rules
7. See
section 53. However section 15 stipulates that the arbitral proceedings shall
be in accordance with the Arbitration Rules setout in the schedule 1 of the
Act.
8. Adrew
1 Chukwuemere, opt cit p. 88.
1. The
Arbitration And Concentration Act Cap A19, Laws Of The Federation Of Nigeria,
2004: This Act is the priory legislation governing the enforcement of
arbitration agreements in Nigeria. The Act Knun as “The ACA” governs both
domestic and international arbitration proceedings with separate provisions for
each. The first schedule to the Act contains arbitral rules that golems the
procedure of arbitration proceeding; where as these rules are binding and must
be applied in domestic arbitrate they only apply by default to imitational
arbitrates where par tree to an arbitration agreement have not expressly agreed
diff. set of rules such as the ICC, LCIA, or UNCITAL rules. However, where the
uterus of the arbitration is in lagos state, and the orb- agreement does not expressly
refer to any other law the lagos state Arbitration law of 2009 cult golem the
proceedings10.
The prows ion of the
part III of the Act solely applies to cases relating to imitational commercial
arbitration and conciliation in addition to other promises of the Act11. Part III of the Act is comprise of
Ss. 43- 53 of the Act it produced for the appointment of arbitrations, making
of awards, termination of proceedings, resonation and enforcement of auroras
applicable only to antler bit ration. The Act is an embodiment of the prosing United
Nations commission on Intl Erode Law (UNCITRAL) model law of arbitration, with
a few differences Examples unlike the Act, the mode law allows parties to agree
on the procedure for challenging of the appointment of arbitration12.
The Act also procured for mandatory
stay of proceedings by the court in respect of any proceedings brought in
preach of an arbitration agreement.13 this prows ion is bereaved to
apply to international arbitration while the discretionary power of the court
is thought to apply to domestic arbitrate13.
2. The
Lagos State Arbitration Law 2009
Lagos State recently took a massive
stop with passing into Law of the Lagos State Arbitration Law in 2009. The Law
incorporates best arbitral practices on party autonomy and control, increased
procedural flexibility and the sanctity of arbitral rulings and awards; and
apply equal to both domestic and international arbitrations conducted in Lagos.
The law on party autonomy provides
thus: that the arbitral tribunal “shall decide the dispute in accordance with such
rules and laws as are chosen by the parties and applicable to the substance of
the dispute”14.
Arbitral
proceedings, under the legislation are to be are to be conducted in accordance
with the procedure setout in Arbitration rule developed by the Lagos Court of
Arbitration in 2009, except as otherwise agreed by the parties. Notably, a
schedule to the law sets out another set of rules, the Arbitration Appication
Rules 2009 which govern all applications made to the court in respect of
proceedings conducted under the Lagos State Arbitration Laws.
Under the Lagos State Arbitration Law “All Arbitration
within the State shall be governed by the provision of this Law except where
the parties have expressly agreed that another arbitration law shall apply”15. This provision cleared up any concern
over which arbitral frame work applies to proceedings situated in Lagos State
(the Arbitration and Conciliation Act or the Lagos State Arbitration Law). In
other words, contracting parties may choose to arbitrate under either law
according to preference, absent of an indication as to applicable law, the
Lagos State Arbitration Law should apply to arbitral proceedings contractually
sited in Lagos, or proceedings in which the tribunal has decided to sit in
Lagos. By virtue of section 58 of the
Lagos State Arbitration Law the High Court of the State is exclusively in
an arbitral process. Thus an application for interim relief or for the
recognition or refusal of enforcement of an award would go to a judge of the
commercial division of the Lagos State High Court.
Application brought before the Court are entirely
governed by the Arbitration Application Rules 20090, specialized set of rules
award at a fair efficient and expeditions disposal of such matter by the Court.
The Court’s jurisdiction under the law to entertain arbitration related
applications is strictly circumscribed. It provides that a court shall not be
intervening in any matter governed by this Law, except where so provided in
this Law.
3. The
Lagos Court of Arbitration
An innovative partnership between the local biz
communities and the arbitral Intrsts groups led to the recent establishment of
the Lagos court of arb. The court was designed in the mould of int’l chamber of
commence and the London court of int’l arb. to serve as a resource centre to
render arb and other ADR services it maintains a panel of neutrals,
arbitrators, mediators and other dispute resolution specialists, who are
willing to be members of any panel contributed to determine any dispute
referred to it. The major responsibility of the Lagos court is to develop
procedural rules from time to guide arbitral proceeding under Lagos state, Arb.
Law. The enabling law of the court, came into effect on 18 May, 2009.17
These are some of the Arbitral frameworks which
governs the practice of arbitration in Nigeria both domestic and international.
Both the Lagos state Arb Law of 2009 and the Arb. And Con. Act Cap A19, LFN,
2004 are modeled after the UNCITRAL model Law, but the state law incorporates
recent proposed amendments to the model law.
Nigeria has acceded to certain international treaties
relating to arbitration some of these treaties includes united nations
convention on the reconnection and enforcement of foreign arbitral awards; the
convention on the settlement of Investment dispute between states and Nationals
of other states also the New York convention for recognition and enforcement of
foreign Arbitral award; therefore awards made in Nigeria can be enforced in
foreign countries on the bass of reciprocity in accordance with the provision
of the governments18 some ……….. Nigeria shall hold some attraction as
a forum or seat for inter natural arbitrations, this derived from the fact that
the arbitration legislature in Nigeria are modeled after the UNGTRAL Model laws
of int’l comm. Arb and the UNGTRAL model rules. Adrw 1 Chukwuemere on his part
of pined that Nigeria environment for recogn and enforcement of foreign award
is for more advanced and conducive than may foreign often realize or are
prepared to acknowledge and that it stands favourably in comparison with the
law of some other forward nations19 foreign awards can indeed very
easily be enforced even with respect to countries like USA Judgment of ……..
maniple law can’t be enforced as that of Nigeria20.
17. Kolawle
Maymi, MCIARB (article published in global Arb Review (GAR 2010 VOL. 5.
18. Ezejofor
Graus, the law of Arbitration in Nigeria (Ltd Longman plc1997) p. 164
19. Chukwuemeri
Adrew 1 studies and material in int’l com. Arb (law house books, 2012) 187
2 0. Ibid
P.187
Meaning
and Over View of Arbitral Award
If the word “arbitration” is taken in a wide sense,
characterized simply by the binding force of the pronouncement made by a third party
to whom the interested parties have had recourse, it may all be said that the
decision in question is an “arbitral award”. The term on the other hand would hardly
be the right one if the intention were to convey a common and more limited
conception of arbitration, namely, that which has for its object the settlement
of differences between parties by judges of their own choice on the bases of respect
for law21.
The term arbitral award” has been defined
by several jurists we shall know look at some definitions of the term by
gunists.
Prof Ezejiofor Gaius: Noted that “At the end of the proceedings, the
arbitral tribunal is obliged to carefully study the accordance and argument,
presented to it, come to a decision upon the case and set down such a decision
in the form of an award”22 . In other words the decision reached by
the tribunal at the conclusion of the proceedings stands as an arbitral award.
Norakopy Grag C. on his part defined arbitral award as “Award are the
decisions of arbitral tribunal.”23 Russell:- “An award is a final determination of a particular issue
of claim in the arbitration.”24 that is the final decision of the
arbitrators in the settlement of controversy25 the award may be contrasted
with procedural orders and directions in the course of the proceedings. Thus the
decision on the pleadings or the admissibility of evidence will be procedural
order and a decision on jurisdiction will be an award.26
In some jurisdiction other than
Nigeria An arbitral awards has been seen not to be merely any decision given by
an arbitral tribunal, tribunals can issue variety of communications to parties,
from corresponding to procedure orders containing findings of a dispositive
nature.27 conversely, tribunals can issue decision that they dub
“around”. The French supreme court on October 12, 2011 gave a definition of the
term arb award as …….. “decisions made by the arbitrators which resolve in a
definitive manner all or part of the dispute that is submitted to them on their
merits, jurisdiction or procedural matter which leads them to put an end to the
proceedings.”28
21. D. J.
Hams, Hams Cases And Materials on int’l law (5th Ed. London &
Mavel, 1998)p. 986
22. Ezejiofor
Giaus opt. CT. P.93
23. Nwakoby
Grag, the law of find practice of commercial Arb. In Nigeria (1st
Ed. Enugu Nigeria NK Ventur (2004) p. 174.
24. Rusell
on Arbitration (21st Ed) p. 249
25. See Domke
on commercial Arbitration p. 419
26. See
generally Orofo And Ajomo, Law and practice of Arb & ogicilin inning (1st
ed. Mbeyi & Associ Lagos 1999) p. 238.
27. This
view can be seen under French law on int’l Arb. Set act in Articles 1442 to
1527 of the code of civil procedure
28. Cass
Civl, October 12, 2011, croupe Antonic table U. Republique du Congo, Z
09-72-489.
The decision was reassuringly conservative; the Supreme
Court above confirmed the definition that the Paris court of appeal had
proposed almost 20 years ago.29
The 1958 New York Convention for the Recognition and
enforcement of arbitral awards is frequently celebrated for a hat it has
advanced in terms of facilitation of int’l trade and harmonization of
arbitration law and practice. It is worth of mentioning that such successful
int’l instrument contains no description about the subject matter (arbitral
award), the recognition and circulation of which it is intended to facilitate during
the negotiation of the convention, several attempts were made with a view to
providing some kind of definition. However, fears of unnecessary qualification
and the wish to secure the broadest possible application resulted in any such
attempted being eventualled abandoned.
It must be underlined that the New York convention is
not the only major instrument dealing with arbitration lacking such definition.
The UNCITRAL model law for example, refrains from describing what constitutes
an arbitral award even though the adoption of a definition was considered and
discussed through out its negoticotion and drafting.30
Award however has been defined equally as the decision
of the arbitral tribunal and is similar in some respect to a court judgment31.
The remedies or orders that an arbitral tribunal may make are which the same as
those that may be made by a court bill there are some differences. Arbitral
tribunals can only make orders with respect to the parties to the arbitration agreement.
Further, under some laws the arbitral tribunal may only be able to award
limited remedies.
Formal Requirements fro an arbitral award to be valid
and limitations on the types of permissible relief.
29. See the
filling cases (A pain, March 25 1994, verbiese V. SEE (1997) Rev. Arb 583, May
25 2000, Guignuer USA HRA Europe (2001) Rev Arb 199, CA Paris, April 11 2002,
societies ABC International V, Societies Diverceylever Ltd (2003) Rev Arb 150
30. Arbitral
Aovgrds under the New York Convention: What are And What my be, blog. Law Nyu.
Educational (visited 3rd September, 2013.
31. A guide
to international ArbitrationT Claton utz, www. Clayton; com. (vsited
last on 3rd September, 2013) p9
36. I.
Olakunle Orojoj. And Ayodele M. Opt Cit P. 247
37. Ibid:
P. 250
The Act and the Arbitration Rule provide for formal
requirement of an aruad these requirements includes (1) the award must be in
writing; (2) it must be signed by all the arbitrators or majority of them; (3)
it must detail the ream for the decision must be given, except where otherwise agreed
by the parties, and it must state the date and place of the award must be
stated32
Writing and signature the writing can take any form
such as handwriting, ……… or prating. It is essential to have such serves biz in
writing. Oral award is not acceptable under current Nigeria Law.33
10 Olufunke Adekoyo and David Tmagun,
Arbitration Guide Int’l Bar. Assoc. Committee (2012)
11 See section 43 Arbitration
and conciliation Act Cap A19 LFN 2004.
12 See Articles 7 and 13(1) of
the UNCITRAL Model Law Respectively.
13 Section 4
Arb and Con. Act Cap A19 LFN 2004. Sonnar (Nig) Ltd U. Partenreedri M.S
Norrdwind (1987)3 NWLR (pt. 66) p. 520
14 Sec
Section 20 of the Lagos State Arbitration Law 2009
15 See Section
2 Ibid
16 Section 50
Ibid