MEDIATION: MEANING AND PRINCIPLES

MEDIATION

MEANING AND PRINCIPLES

Mediation as a form of Alternative Dispute Resolution (ADR) aims to determine the conditions of any settlements reached rather than accepting something imposed by a third party. Thus, Mediation aims at working with the users in conflict to incorporate the information or viewpoints of both, while ensuring that the result conforms to all applicable policies. At the same time, it endeavours to produce sufficient peace between the parties to allow amicable discussion and prevent the need for future dispute resolution.

Mediation is also an activity in which a neutral third party, the mediator, guides and regulates structured discussion to facilitate reaching consensus on a disputed issue.

Mediation is intended to achieve a way for people to keep working happily together and build better articles, while growing from the mutual exchange. It is also an arrangement for parties who, although genuinely interested in resolving their disputes, cannot find common agreement.

Mediation could also be referred to as an informal process, aimed at enabling the parties to a dispute to discuss their differences in total privacy, with the assistance of a neutral third party (the mediator), whose task it is first to help each party to understand the other party’s view of the matters in dispute and then to help both parties to make a dispassionate objective appraisal of the total situation.

As part of the process, the mediator will talk confidentially with each party. The object of the process is to help the parties to negotiate a settlement. The discussions are wholly without prejudice; that is, nothing that is said by either party can be used or referred to in any proceedings in a Court. The mediator arranges and chairs the discussions and acts as an intermediary to facilitate the progress towards settlement.

MEDIATORS

A mediator is a person who works with both sides in a dispute in an attempt to reach an agreement. Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial.

ROLES AND FUNCTIONS OF MEDIATORS

Mediators can contribute to the settlement of disputes by creating favourable conditions for dealing with them. This can occur through:

1.      Providing an appropriate physical environment – This is through selection of neutral venues, appropriate seating arrangements, visual aids and security.

2.      Providing a procedural framework – This is through conduct of the various stages of mediation process. As the chair of the proceedings, they can establish basic ground rules, provide order, sequence and continuity. The mediators opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based.

3.      Improving the emotional environment – This is a more subtle function and varies among mediations and mediators. They can improve the emotional environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.

CHARACTERISTICS OF MEDIATION

The principal characteristics of mediation are –

1.      Mediation is a non-binding procedure controlled by the parties – A party to mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator's role is, rather, to assist the parties in reaching a settlement of the dispute. Indeed, even when the parties have agreed to submit a dispute to mediation, they are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests. However, parties usually participate actively in mediations once they begin. If they decide to proceed with the mediation, the parties decide on how it should be conducted with the mediator.

2. Mediation is a confidential procedure – In mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot be provided to anyone - including in subsequent court litigation or arbitration - outside the context of the mediation. Mediation's confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.
3. Mediation is an interest-based procedure – In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In mediation, the parties can also be guided by their business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their past conduct. When the parties refer to their interests and engage in dialogue, mediation often results in a settlement that creates more value than would have been created if the underlying dispute had not occurred.

Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Indeed, one could say that, even when a settlement is not achieved, mediation never fails, as it causes the parties to define the facts and issues of the dispute, thus in any event preparing the ground for subsequent arbitration or court proceedings.

DISTINGUISHING MEDIATION FROM OTHER FORMS OF DISPUTE SETTLEMENT

MEDIATION AND ARBITRATION

The role of a mediator is unlike the role of an arbitrator; mediators are facilitators of voluntary discussion, while arbitrators hear evidence and issue binding rulings, including the ability to issue sanctions against users

Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called 'mediation/arbitration'. In this process, if parties are unable to reach resolution through mediation, they can shift to an arbitrator, which entails shifting the mediation process into an arbitral one, seeking additional evidence as needed (particularly from witnesses, if any, since witnesses are normally not called upon by a mediator), and finally rendering an arbitral decision.

Mediation/arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator's unique role as someone who wields coercive power over neither the parties nor the outcome. If parties in mediation are aware the mediator might later need to act in the role of judge, the process could be dramatically distorted. However, mediation-arbitration often involves using different individuals in the role of mediator and – if needed later – arbitrator, but this is not always the case.

MEDIATION AND LITIGATION

Mediation offers a process by which two parties work towards an agreement with the aid of a neutral third party. Litigation, however, is a process in which the courts impose binding decisions on the disputing parties in a determinative process operating at the level of legal rights and obligations.

These two processes sound completely different, but both are a form of dispute resolution. Litigation is conventionally used and conventionally accepted, but Mediation is slowly becoming more recognized as a successful tool in dispute resolution.

In saying this, there are distinct differences between the two processes. Mediation claims to resolve many of the problems associated with litigation, such as the high costs involved, the formality of the court system and the complexity of the court process. Mediation, unlike litigation does not create binding agreements unless the parties consent to it, and the Mediator has no say in the outcome.

MEDIATION AND CONCILIATION

"Conciliation" sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes. Neither mediation nor conciliation process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.

One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect. On the other hand, mediation works purely facilitative: the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.

Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation has somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side's argument should they go to court; whereas facilitative mediators and transformative mediators do not do this.

Both mediation and conciliation serve to identify the disputed issues and to generate options that help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible processes; and any settlement reached should have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the party with the strongest legal argument.

HOW DOES MEDIATION WORK

This has to do with the steps in mediation (mediation process). There are six (6) steps to a formal mediation –

1.      Introductory remarks;

2.      Statement of the problem by the parties;

3.      Information gathering time;

4.      Identification of the problems;

5.      Bargaining and generating options; and

6.      Reaching an agreement.

INTRODUCTORY REMARKS

The mediator will wait until both parties are present and then make introductions. The physical setting will be controlled so that no party feels threatened. Most mediators will ask that if children are present, they wait outside. The mediator will then give an opening statement. This outlines the role of the participants and demonstrates the mediator’s neutrality. Some mediators will make comments about what they see as the issue and confirm the case data if briefs have been pre-submitted. Next, the mediator will define protocol and set the time frame for the process. There will be a review of the mediation guidelines and the mediator will briefly recap what it is that he has heard as the issues.

The opening statement during the introductory remarks will set out the ground rules for the mediation. These ground rules are what help the mediation move along smoothly. Parties should not interrupt each other; the mediator will give each party the opportunity to fully share their side of the story.

STATEMENT OF THE PROBLEM BY THE PARTIES

After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most often, the person who requested the mediation session will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party. If there are lawyers present who make the initial statement, the mediator will then ask the client to also make a statement. The rationale behind the statement of the problem is not necessarily a search for the truth; it is just a way to help solve the problem.

INFORMATION GATHERING

The mediator will ask the parties open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties, and will summarize often. This helps the mediator build rapport between the parties, especially when a facilitative style is used.

PROBLEM IDENTIFICATION

This might also be part of other segments. The mediator tries to find common goals between the parties. The mediator will figure out which issues are going to be able to settle or those that will settle first.

BARGAINING AND GENERATING OPTIONS / REACHING AN AGREEMENT

Methods for developing options may include group processes, discussion groups or sub-groups, developing hypothetical plausible scenarios, or a mediator’s proposal where the mediator puts a proposal on the table and the parties take turns modifying it. However, the most commonly used method is the caucus (a method used between people to promote a particular policy or interests).

Once the participants are committed to achieving a negotiated settlement, the mediator will propose a brainstorming session to explore potential solutions. This can lead to a final agreement, which diffuses the conflict and provides a new basis for future relations.

The mediator may decide to hold private sessions with both parties in order to move the negotiations along. This caucus session will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions.

KEY QUALITIES OF THE MEDIATION PROCESS

1.      Voluntary – A party can leave at any time for any reason, or no reason.

2.      Collaborative – As no participant in mediation can impose anything on anyone, everyone is motivated to work together to solve the issues and reach best agreements.

3.      Controlled - Each participant has complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on a party.

4.      Confidential – Mediation is generally confidential, as you desire and agree, be that by statute, contract, and rules of evidence and/or privilege. Mediation discussions and all materials developed for mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. A mediator is obligated to describe the extent of mediation confidentiality and exceptions to that confidentiality. The extent of confidentiality for any "caucus meetings" (meetings between the mediator and individual parties) should also be defined.

5.      Informed – The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutually acceptable experts can be retained. Expert advice is never determinative in mediation. The participants always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought, is ultimately, a decision of each mediation participant.

6.      Impartial, Neutral, Balanced and Safe – The mediator has an equal and balanced responsibility to assist each mediating party and cannot favour the interests of any one party over another, nor should the mediator favour a particular result in the mediation. A mediator is ethically obligated to acknowledge any substantive bias on issues in discussion. The mediator's role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.

7.      Self-Responsible and Satisfying – Based upon having actively participated in voluntarily resolving issues, participant satisfaction and the likelihood of compliance are found to be elevated through mediation compared to court options.

ETHICAL STANDARDS REQUIRED OF MEDIATORS

1.      Knowledge – sufficient proficiency on the subject matter of dispute.

2.      Honourable – fairness, candour and decorum; to earn respect and confidence of the parties.

3.      Good listener and high analytical skills.

4.      Impartial facilitator – moves the parties towards amicable resolution of the dispute.

5.      Facilitates resolution of the dispute timely.

6.      Ensures confidentiality.

7.      Do not propose or impose decision on the parties but adopt techniques to help the parties arrive at their mutually agreeable solutions.

8.      Ensures resolution by parties is reduced into writing with all terms and points clearly spelt out.

9.      Displays leadership skills and control the proceedings.

10.  A mediator is not bound to take notes because he is not expected to decide for the parties the outcome of the mediation.

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ADVERTISEMENT AND IMPROPER ATTRACTION OF BUSINESS BY LEGAL PRACTITIONERS

THE MEANING OF ADVERTISEMENT AND SOLICITATION

Advertisement is a notice or display advertising a thing or something whilst solicitation is to accost someone and offer one’s services.

THE SCOPE OF PROPER AND IMPROPER ATTRACTION OF BUSINESS

Improper attraction of business includes all acts, which give an unfair advantage thus lowering the prestige of the profession. It also causes unhealthy reputation, misrepresentations, insinuations of incompetence, and it is unethical.

Under Rule 39(1) of the Rules of Professional Conduct, 2007 a lawyer may engage in any advertising or promotion in connection with the practice of law so far as it is fair and proper in all circumstance; and complies with the Rules.

A lawyer shall not advertise his services in any newspaper or publication, neither should he publicise himself to the press or any periodical as a lawyer except in a legal periodical.

He should abstain from distributing his card indiscriminately as a form of advertisement. His signboard should also be moderate without neon lights or unnecessary designs.

THE EFFECT OF BREACHING THE RULE OF ADVERTISEMENT

Where there is a breach of advertisement, the noble and sober nature of the profession will not be maintained since success now depends on effective advertisement and not on competence.

Adverts tend to berate or belittle other members of the profession. It creates unfair attraction of business. Briefs will now depend on the financial capability of the lawyer to engage the best form of advert.

Unhealthy competition and rivalry will be created and dignity of the profession would be eroded by such practice.

ADVERTISEMENT ON THE INTERNET

In view of the trend of globalisation, most jurisdictions have allowed a seemingly form of advert on the net. In the United Kingdom, law firms are allowed to advertise on the net to a certain degree. 

In view of this, it is expected that our rules of professional conduct be reviewed in line with the laudable trend in other jurisdictions with a limitation.

SOLICITING

Rule 39(3) provides that it is unprofessional for a lawyer to solicit professional employment by circulars, handbills, advertisement for professional employment such as furnishing or inspiring newspaper comments or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged in through touts or by personal communication or interview.

Rule 39(4) states some forms of advertisement that is allowed.  These are – Publication in reputable law list in a manner consistent with the standard of conduct imposed by the rules of professional conduct.

A brief biographical and informative date may be placed in the list. Such date must not be misleading and may include only statement of the lawyer’s name, his professional associates, his junior in Chambers, addresses, date, place of birth, date of admission to the Bar, schools attended with dates and degrees legal authorship; quasi-public offices held, post of honour, legal teaching positions; membership and offices held in the Bar Association, etc.

Also permissible is sending to a client notice of a change of address or telephone number. 

Also having the word “Barrister and Solicitor” or “Solicitors and Advocate” written after the lawyer’s name displayed at the entrance or outside in building where his chambers is situated is permissible. However, the size of this should be very reasonable and the design and colours must be sober. 

A lawyer’s degree may also appear after his name. If he is a notary public, it could also be included but it does not include specialist qualification. For example, Commercial Land consultants, experts in family issues, divorce, custody, welfare, etc. Such advert is unethical.

Soliciting for instructions and employment is probably the most common and degrading example of unfair attraction of business. It lowers the prestige and reputation of the lawyer involved and the profession as a whole. In includes the following:

1.      Solicitation for employment in Court premises.

2.      Solicitation for conveyancing business.

3.      Conducting search at the Land Registry to detect defects with a view to employment in litigation.

4.      Instigating litigation.

5.      Ambulance chasing.

6.      Under association. This is an indirect form of touting; and could also be referred to as “class touting”. 

Finally, it is desirable for a legal practitioner to meet with people in clubs, restaurants and other social gatherings, but not where the aim of such gathering is for a legal practitioner to associate unduly with other persons who are in a special position to assist him to obtain employment. It is very dishonourable for a legal practitioner to distribute his cards in social gatherings to gain employment. This is very degrading and unethical.

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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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