Enforcement of Foreign Arbitral Awards in Nigeria and the Challenge of Time Limitation.
ABSTRACT
Considering the importance of arbitration in the settlement of commercial disputes world over, this work has its focus on the effect of time limitation in the enforcement of foreign arbitral awards in Nigeria being that the current legal position in Nigeria on the limitation period for enforcement of arbitral awards appears to be narrow and too limited compared to what obtains in other parts of the world especially in jurisdictions like England, China and Hong Kong which in our view are better attractions for foreign investors.
An analysis of case law and legal regime of principles of recognition and enforcement of foreign arbitral awards in Nigeria is also carried out, the purpose being to show the progressive acceptability of arbitration as an alternative means to settling commercial disputes. The work equally examines the possibility or otherwise of enforcing an arbitral award that is subject to set-aside proceeding in Nigeria. Furthermore, examination of the attitude of the national courts to international commercial arbitration in Nigeria is also carried out.
The study adopts a descriptive and analytical approach because the work describes and analyses the present state of the law in Nigeria with respect to the area of focus. The objective is to show like in some jurisdictions such as China, England and Hong Kong that the limitation for commencing enforcement proceedings runs from the final date on which, pursuant to the award, the losing party is obliged to comply with its terms. Finally, some recommendations are offered in view of making Nigeria the centre of interest in conducting foreign arbitral proceeding as well as enforcement of such awards.
TABLE OF CONTENTS
Title Page…………………………………………………………………………………………………. i
Certification………………………………………………………………………………………..ii
Dedication……………………………………………………………………………………………iii
Acknowledgements………………………………………………………………………………… iv
Abstract………………………………………………………………………………………………..v
Table of Contents…………………………………………………………………………………vi
Table of Cases……………………………………………………………………………………….vii
Table of Statutes……………………………………………………………………………….viii
Table of Abbreviations…………………………………………………………………………ix
CHAPTER ONE
INTRODUCTION
1.1 Background of the Research………………………………………………………….. 1
1.2 Statement of the Problem………………………………………………………………. 4
1.3 Research Questions………………………………………………………………………. 4
1.4 Literature Review………………………………………………………………………….. 5
1.5 Objectives of the Study………………………………………………………………… 10
1.6 Methodology………………………………………………………………………………. 10
1.7 Organization of the Study……………………………………………………………… 10
1.8 Scope of the Study……………………………………………………………………….. 11
CHAPTER TWO: AN OVERVIEW OF THE LEGAL INSTRUMENTS
APPLICABLE TO THE RECOGNITION AND
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
IN NIGERIA
2.1 Arbitration and Conciliation Act …………………………………………………… 12
2.2 The United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards in Nigeria………………………………………………. 17
2.3 UNCITRAL Model Law………………………………………………………………. 19
2.4 UNCITRAL Arbitration Rules……………………………………………………… 21
2.5 International Centre for the Settlement of Investment Disputes Act…… 23
2.6 Foreign Judgements (Reciprocal Enforcement) Act………………………… 26
2.7 The Nigerian Investment Promotion Commission Act…………………….. 28
2.8 The Local Remedies Rule……………………………………………………………. 30
CHAPTER THREE: ENFORCEMENT OF ARBITRATION
AGREEMENT
3.1 The Arbitration Agreement…………………………………………………………….. 33
3.2 Enforcement of the Arbitration Clause…………………………………………….. 36
3.3 Legal Imperatives for the Validity of Arbitration Agreement…………….. 39
3.4 Independence of the Arbitration Clause……………………………………………43
3.5 Arbitration Clauses as Ouster Clauses…………………………………. 47
CHAPTER FOUR: METHODS OF ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS IN NIGERIA
4.1. Enforcement under the Foreign Judgment (Reciprocal Enforcement)
Act………………………………………………………………………………………………………..51
4.2. Enforcement under Section 51 of the Arbitration and Conciliation Act.-52
4.3. Enforcement under the New York Convention………………………………….54
4.4. Enforcement by Action upon the Award…………………………………………. 55
4.5. Enforcement of ICSID Award………………………………………………………. 56
CHAPTER FIVE: REFUSAL AND SETTING ASIDE OF FOREIGN
ARBITRAL AWARDS
5.1. Distinction between Refusal and Setting Aside………………………………. 58
5.2. Grounds for Setting Aside of Foreign Arbitral Awards in Nigeria…….. 58
5.3. Impediments to the Recognition and Enforcement of Foreign Arbitral
Awards……………………………………………………………………………………….. 67
5.3.1. Non-Arbitrability of Subject Matter……………………………………………….. 67
5.3.2. State Immunity…………………………………………………………………………….. 69
5.3.3. Public Policy……………………………………………………………………………….. 71
5.4. Economic Importance of the Recognition and Enforcement of Foreign
Arbitral Awards in Nigeria……………………………………………………………. 72
CHAPTER SIX: ENFORCEMENT OF ARBITRAL
AWARDS AND THE CHALLENGE OF TIME LIMITATION IN
NIGERIA
6.1. Meaning and Purpose of Recognition and Enforcement……………………. 74
6.2. The Challenge of Time Limitation in Enforcement of Arbitral
Awards……………………………………………………………………………………….. 75
6.3. Types of Arbitral Awards……………………………………………………………… 84
6.4. Partial Enforcement of Foreign Arbitral Awards……………………………… 90
6.5. Enforceability of an Award that is Subject of Set- Aside
Proceedings…………………………………………………………………………………..93
CHAPTER SEVEN: RECOMMENDATIONS AND CONCLUSION
7.1. Recommendations……………………………………………………………………….. 95
7.2. Conclusion………………………………………………………………………………….. 96
Bibliography……………………………………………………………………………….. 99
INTRODUCTION
Formerly, traditional means of settling disputes have been a common occurrence in Nigeria. Before the advent of colonial administration in the late 19th century, parties were represented by persons skilled in oratory prowess, who could argue and who possessed the persuasive power of argument. The most serious disputes were resolved by a council of elders that would take testimony and sometimes hear the arguments of agents advocating on behalf of the disputants.
It was the general belief then that no appeal could come from those judgments partly because the people feared and believed in the elders and therefore their wisdom could not be questioned. As conservative as this would sound, embedded in this practice was what has come to be known as arbitration today. Arbitration has been 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 is defined in section 57 (1) of the Arbitration and Conciliation Act as commercial arbitration whether or not administered by permanent arbitral institute. According to Redfern & Hunter, arbitration means a situation where “two or more parties, faced with a dispute which they cannot resolve for themselves, agreeing that some private individual will resolve it for them and if the arbitration runs its full course….it will not be settled by a compromise but by a decision”.
BIBLIOGRAPHY
Ezejiofor, G., The Law of Arbitration in Nigeria, (Ikeja Lagos: Longman Nigeria Plc., (1997).
Nwakoby, G., The Law and Practice of Commercial Arbitration in Nigeria, (2nd edn.,
Enugu: SNAAP Press Nig. Ltd., 2014).Redfern, A. and Hunter, M., Law and Practice of International Commercial Arbitration,
(4th edn., London: Sweet and Maxwell, 2004).Akpata, E., The Nigerian Arbitration Law in Focus, (Lagos: West African Book
Publishers Ltd., 1997).Orojo, J. O. and Ajomo, M. A., Law and Practice of Arbitration and Conciliation in
Nigeria, (Lagos: Mbeyi and Associates Nigeria Ltd., 2004).Gills, W., The Law of Arbitration, (London: Sweet and Maxwell, 1983).
Binder, P., International Commercial Arbitration and Conciliation in UNCITRAL Model
Law Jurisdictions, (London: Sweet and Maxwell, 2005).
StudentsandScholarship Team.