ARBITRATION AND CONCILIATION

ARBITRATION

Arbitration is a process of dispute resolution in which a neutral third party called – arbitrator, renders a decision after hearing at which both parties have an opportunity to be heard.

In Kano State Urban Dev. Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 SC, an arbitration was defined as the reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner by a person or persons other than a court of competent jurisdiction.

Arbitration may be voluntary or compulsory. In a voluntary arbitration, the disputing parties select the arbitrator who has the power to make binding judgment. Thus, it is by mutual and free consent of the parties. Whilst, compulsory arbitration is that which occurs when the consent of one of the parties is enforced by statutory provisions.

An arbitrator is a neutral person either chosen by the parties to a dispute or appointed by a court, to hear the parties’ claims and render a decision.

PRINCIPLES AND LAWS/RULES GOVERNING ARBITRATION AND CONCILIATION IN NIGERIA

There are two main sources of Nigerian Arbitration Law namely –

1.      The Common law and the doctrines of equity;

2.      Statutes.

COMMON LAW AND DOCTRINES OF EQUITY

The common law means the case law of Nigeria and such principles of English Common Law and doctrines of equity as are still applicable in Nigeria. As a general rule, the common law of England and its doctrines of equity apply in Nigeria except where they have been modified or rejected in Nigeria either by statute or by courts.

It should however be noted that Nigerian courts still rely very heavily on English decisions as persuasive authorities in their own decisions.

STATUTES

The Nigerian Arbitration law is largely derived from statutes both foreign and local. The foreign ones are –

1.      The UNCITRAL Model Law;

2.      The UNCITRAL Arbitration Rules; and

3.      The New York Convention.

While the local statutes are –

1.      The Arbitration ACT 1914; and

2.      The Arbitration and Conciliation Decree 1988.

THE UNCITRAL MODEL LAW

UNCITRAL means the United Nations Commission on International Trade Law.

This was approved because of the need to liberalize international commercial arbitration by limiting the role of national courts and allowing the parties freedom to choose how their disputes should be determined.

It was also to provide for a framework for the conduct of international commercial arbitrations, so that in the event of the parties being unable to agree on procedural matters, the arbitration would nevertheless be capable of being completed.

The law has the advantage that it is not a treaty but a model law which may be adopted with necessary amendments to suit each jurisdiction. Furthermore, it is limited to disputes relating to international contracts leaving each nation which adopts it still free to make provisions for purely domestic arbitration.

Lastly, it was made to aid the enforceability of awards and to clarify certain controversial practical issues.

THE UNCITRAL ARBITRATION RULES

The major arbitral institutions have their own rules which are up-to-date for resolution of disputes contained in the UNCITRAL Arbitration Rules.

The UNCITRAL Arbitration Rules are the same with the rules that are contained in the First Schedule to the Arbitration and Conciliation Act, which are for both domestic and international arbitrations.

NEW YORK CONVENTION

This is regarded as the most important international treaty relating to international commercial arbitration. It is an improvement on the Geneva Convention of 1927 because it provides for a much more simple and effective method of obtaining recognition and enforcement of foreign arbitral awards.

The convention has now been made expressly applicable to Nigeria by section 54 of the Arbitration and Conciliation Decree, 1988.

The convention provides for the recognition of both the arbitration agreement and the arbitral award.

ARBITRATION ACT, 1914

This was the first Arbitration statute established in Nigeria, based on the English Arbitration Act, 1889 and was applied to the whole country which was then governed as a unitary state.

The provisions of the Act included the number and mode of appointment of arbitrators, the making of awards, the umpire, and examination of witnesses and others on oath and the costs of the reference.

ARBITRATION AND CONCILIATION DECREE, 1988

This Decree was made to provide for both domestic and international arbitration. It also provides for conciliation.

 The Decree incorporates the New York Convention, 1958 which is set out as the Second Schedule to the Decree.

The Decree is divided into four (4) parts and three (3) schedules.

It is now known as Arbitration and Conciliation Act, 1988 Cap. A18 LFN 2004.

The Arbitration and Conciliation Act, 1988 is currently the applicable law on arbitration and conciliation throughout the Federation of Nigeria. It provides a unified legal framework for the fair and efficient settlement of domestic and international commercial disputes in Nigeria. Moreover, it supersedes any other law on arbitration in Nigeria. Where there is thus any inconsistency with other law, that other law (State law) is void and of no effect to the extent of the inconsistency – C.G de Geophysique v. Etuk (2004) 1 NWLR (Pt. 853) 20 CA; sections 4(5) and 315(3) of the 1999 Constitution.

ARBITRATION PROCEEDINGS

Parties to a dispute may decide on their own to settle by arbitration. And, the law requires them to obey the rules, proceedings and awards of the arbitration panel for better or worse – African Re Corp. v. AIM Consultancy Ltd. (2004) 11 NWLR (Pt. 884) 223 CA; C.G de Geophysique v. Etuk (supra).

An arbitration proceeding is provided for under section 15 of the Arbitration and Conciliation Act.

Section 15 provides thus –

(1)   The arbitral proceedings shall be in accordance with the procedure contained in the Arbitration Rules set out in the First Schedule to this Act.

(2)   Where the rules referred to in subsection (1) of this section contain no provision in respect of any matter related to or connected with a particular arbitral proceedings, the arbitral tribunal may, subject to this Act, conduct the arbitral proceedings in such a manner as it considers appropriate so as to ensure fair hearing.

(3)   The power conferred on the arbitral tribunal under subsection (2) of this section shall include the power to determine the admissibility, relevance, materiality and weight of any evidence placed before it.

In arbitral proceedings, where the arbitral tribunal determines itself the procedural rules, it may either derive them from a national law or draw up its own rules.

It is necessary for the arbitral tribunal to observe the mandatory rules of national law applicable to international arbitration in the country where the arbitration takes place to ensure that the award to be made by it will be enforceable at law.

Arbitration being a matter of procedure as opposed to a matter of substantive law is governed by the lex fori (the law of the country in which an action is brought) – James Miller & Partners Ltd. v. Whitworth Street Estates (Manchester) Ltd (1970) A. C 583 at 606.

CONDUCT OF ARBITRAL PROCEEDINGS

By section 14 of the Act, parties shall be entitled to equal treatment and they should be given opportunity to present their cases.

The place of arbitration shall be determined by the tribunal with due regards to the matter and the convenience of the parties – section 16 of the Act.

The tribunal also has power to appoint and expect to report on the matter before it while it could also order the attendance of a witness – section 22 and 23 of the Act.

COMMENCEMENT OF ARBITRAL PROCEEDINGS

Under section 17 of the Arbitration Act, provides as follows –

“Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute shall commence on the date the request to refer the dispute to arbitration is received by the other party”.

The commencement of arbitration is very important in determining the limitation of time as to the right to bring an action or claim. The right to action or claim may be lost if the time limit is not observed.

ARBITRATION PROCEDURE

1.      The arbitrator commences business immediately.

2.      Procedural matters are outlined and agreed upon.

3.      Claims are made and filed while the Respondent also gives his defence which may or may not be accompanied by a counter-claim.

4.      Relevant documents may also be tendered and exchanged.

The procedure is such that no party is left or caught unawares. In most cases, the court appoints arbitrators for the disputing parties.

ESSENTIALS OF ARBITRATION

For a dispute to qualify for adjudication by a third party through arbitration procedure, it must possess the following characteristics –

1.      There must be a dispute between the parties concerning some agreement over a point of law or fact.

2.      The dispute or difference must be justifiable.

3.      The parties must voluntarily agree to resolve the dispute through third party mediation.

4.      The agreement to submit to arbitration must not be illegal.

5.      The parties must have inserted a clause in the said agreement mandating them to submit to arbitration in the present or in the future.

6.      There must be a formal reference of the dispute to the decision of the third party.

7.      That third party must expressly or impliedly be required to decide according to law.

8.      It must be a term of that contract that the award shall be binding and that the parties must act in good faith.

THE AWARD

Decision in respect of an award by an arbitral tribunal shall be by a majority – section 14 of the Act, in the event of a mutual settlement before the arbitral proceeding is concluded, the arbitral proceedings shall be terminated.

An award shall state the reasons, the date and the place it was made. It must also be signed by the majority of arbitrators. However, a party who is aggrieved by an arbitral award may, within three (3) months, apply for its setting aside – section 29 of the Act, as was considered by the Supreme Court in Taylor Woodrow (Nig.) v. S.E. GMBH (1993) 4 NWLR (Pt. 286) 127 SC. An arbitral award shall be recognised as binding and shall, upon application in writing to the court, be enforced by the court.

On the other hand, any aggrieved party may request the court to refuse recognition or enforcement of the award on ground of misconduct – Taylor Woodrow (Nig.) v. S.E. GMBH (supra); Home Developments Ltd. v. Scancilar Contracting Co. Ltd. (1994) 9 SCNJ 87.

ENFORCEMENT OF AN AWARD

An award, though like a judgment in that they are both adjudicatory cannot be executed like the judgment of a court. This does not mean that parties cannot obey the directions in an award, because parties against whom an award is made may voluntarily obey the order and comply, since the award is binding as between the parties and their privies. Thus, it is the final decision of the Arbitrator, and both the claimant and defendant shall have copies of the Award.

Every arbitral award duly made is to be recognised as binding and is expected to be complied with. It is when there is a default that the question of enforcement by the winning party arises.

Section 31 of the Act provides that –

(1)   An arbitral award shall be recognised as binding and subject to this section and section 32, shall, upon application in writing to the court be enforced by the court.

(2)   The party relying on an award or applying for its enforcement shall supply –

(a)    The duly authenticated original award or a duly certified copy thereof;

(b)   The original arbitration agreement or a duly certified copy thereof;

(3)   An award may by leave of the court or a judge be enforced in the same manner as a judgment or order to the same effect.

A party that is not satisfied with the award may go to court for redress. The court may order the award to be remitted back to the Arbitrator or may decide to set it aside – Governor of Niger State v. Albishir (1985) 3 NWLR (Pt. 29) 404 C. A.

Usually, it is the losing party that goes to court to seek a setting aside order. The winning party may also approach the court for an order to enforce the award – Commerce Assurance Ltd. v. Alli (1986) 3 NWLR (Pt. 29) 404 C. A.

Once an order is made for the enforcement of an award, the successful party may levy execution under the Sheriff and Civil Process Law where the award was made in a foreign country against any organisation or company in Nigeria, it must first be registered under the Reciprocal Enforcement of judgment Act, 1960 if the Award was from a United Kingdom. Thereafter, application shall be made to the court for enforcement by way of originating summons.

However, by virtue of the New York Convention, 1958, an International treaty to which Nigeria is a subscriber, it could be reasonably inferred that judgments of other countries, apart from the United Kingdom can also be registered and enforced reciprocally between Nigeria and the other country or countries.

ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

Enforcement of foreign arbitral awards is easier than enforcing judgments. The main reason is that there are a number of rules and international conventions which facilitate the enforcement of arbitral awards. This includes the United Nations Convention on the Recognition and Enforcement of Arbitral Awards (New York Convention), 1958 which supersedes the Geneva Protocol on Arbitration Clauses, 1923 and the Geneva Convention on Execution of Foreign Arbitral Awards, 1927.

The New York Convention is universally recognised as it makes it mandatory for signatories to recognise and enforce all final arbitral awards while allowing countries only limited grounds on which it can deny enforcement.

These are the basic attributes of the New York Convention and it affords the enforcement of foreign awards on the basis of reciprocity among countries that are signatories to the Convention.

There is also an age long tradition of parties voluntarily complying with foreign arbitral awards possibly borne out of the reality that the act of arbitration itself is a consensual process.

OBJECTION (CHALLENGE) TO ENFORCEMENT OF AN AWARD

Section 32 of the Act provides that –

“Any of the parties to an arbitration agreement may request the court to refuse recognition or enforcement of the award.”

A person who wishes to object or challenge the enforcement of the award can apply to the court at any time after the award is made, especially as the application and order for enforcement may be made ex parte.

GROUNDS ON WHICH A COURT MAY DECIDE WHETHER OR NOT TO REFUSE RECOGNITION OR ENFORCEMENT OF AN AWARD

The grounds are –

1.      That a party to the arbitration agreement was under some incapacity; or

2.      That the arbitration agreement is not valid under the law which governs the arbitration; or

3.      That the party objecting was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or otherwise was not able to present his case; or

4.      That the award deals with a dispute not contemplated by or not falling within the terms of the submission or arbitration; or

5.      That the award contains decisions on matters which are beyond the scope of the submission to arbitration, subject to the possibility of separating those submitted from those not submitted; or

6.      That the composition of the arbitral tribunal or the arbitral procedure is not in accordance with the agreement of the parties; or

7.      Where there is no agreement between the parties, that the composition of the tribunal or the arbitral procedure was not in accordance with the applicable law; or

8.      That the award has not yet become binding on the parties or has been set aside or suspended by a court; or

9.      That the subject matter of the dispute is not capable of settlement by arbitration under Nigerian law; or

10.  That the recognition or enforcement of the award is against public policy of Nigeria – section 52 of the Act.

CONTENTS OF THE ARBITRATION CLAUSE

The contents of an arbitration clause will depend on whether the agreement is for ad hoc arbitration or an institutional arbitration.

Where it is for ad hoc arbitration, all matters of importance and of interest must be specifically provided for unless some rules or statutes are incorporated by reference.

Where it is for an institutional arbitration, it is sufficient to adopt the procedure and rules of a specified arbitration institution.

The following are some of the matters which need to be provided for as contents of the arbitration clause –

1.      The reference.

2.      The parties.

3.      The arbitrators.

4.      The place of arbitration.

5.      The applicable law.

6.      The arbitration procedure.

7.      The language of the arbitration.

8.      Other matters.

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