First published on Friday, 11 May 2012
1.The New York Convention
Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
Nigeria became a signatory to the New York Convention on 17 March, 1970 adopting both the reciprocal and commercial reservations. The Convention entered into force on 15 June, 1970. The Nigerian Courts will therefore enforce awards made in a state which is also a party to the New York Convention. The Convention equally applies to differences which arise out of legal relationships which are contractual.
Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
Nigeria is also a signatory to the ICSID Convention. ICSID arbitral awards are enforced in Nigeria pursuant to the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act, CAP 120, Laws of the Federation of Nigeria, 2004. An ICSID award has effect as a final judgment of the Supreme Court for purposes of enforcement.
There is also the Foreign Judgments (Reciprocal Enforcement) Act, CAP F.35, Laws of the Federation of Nigeria 2004. This is an Act to make provision for the enforcement in Nigeria of judgments given in foreign countries which accord reciprocal treatment to judgments given in Nigeria.
The Foreign Judgments Enforcement Act defines judgments to include foreign arbitral awards.
Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
4.Arbitration bodies in your jurisdiction
What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
Arbitration bodies relevant to international arbitration that are based in Nigeria include the Chartered Institute of Arbitrators (Nigerian Branch), the Regional Centre for International Commercial Arbitration and the Arbitration Commission of the International Chamber of Commerce (Nigerian National Committee).
Arbitrations are conducted in Nigeria from time to time under the ICC Rules of Arbitration. Upon request from the ICC International Court of Arbitration in Paris, the Arbitration Commission of the ICC Nigerian National Committee nominates arbitrators for appointment by the ICC Court of Arbitration in Paris. The Chartered Institute of Arbitrators and the Regional Centre for International Commercial Arbitration administer arbitrations under their own rules and also act as appointing authorities. The Arbitration Rules of the Regional Centre for International Commercial Arbitration are based on the UNCITRAL Model Law. There has also been recently established the Lagos Court of Arbitration (LCA), which will administer arbitrations and also act as appointing authority when it becomes operational. Apart from the above mentioned institutions, there are also a few other institutions catering for disputes arising in particular trade or industry such as Construction and Maritime.
Can foreign arbitral providers operate in your jurisdiction?
Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
There is no specialist arbitration Court in Nigeria. However, the judiciary in Nigeria is very familiar with, (and is very supportive of) the law and practice of international arbitration. Applications in respect of arbitrations will be heard at first instance by the State High Court or the Federal High Court with a right of Appeal to both the Court of Appeal and the Supreme Court. However, applications in respect of ICSID Awards are made straight to the Supreme Court of Nigeria.
What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
Are any types of dispute non-arbitrable? If so, which?
The Act does not list or delimit matters which are not capable of settlement by arbitration. Generally Commercial disputes arising under valid arbitration agreements are arbitrable. However, matters that are deemed non-arbitrable under Nigerian Law include criminal law matters e.g fraud and family law matters such as dissolution of marriage.
Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
Under Nigerian Law, a third party cannot be bound by an arbitration clause without its consent. Although neither the Arbitration Act nor the Rules made pursuant thereto provide for joinder of parties in an arbitration process, in practice however, a third party may participate in an arbitration only with the consent of all parties concerned.
Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
The Act does not make provision for consolidation of separate arbitral proceedings. However, an arbitral tribunal with its seat in Nigeria may consolidate separate arbitral proceedings under one or more contracts with the consent of all the parties concerned.
The parties may provide for consolidation in the relevant contract(s) or may agree to consolidation at the time the dispute arises.
11.Groups of companies
Is the group of companies doctrine (or any other method of piercing the corporate veil) recognised in your jurisdiction?
The group of companies doctrine is not recognised under Nigerian Law. Group companies will therefore only be recognised as parties to an arbitration agreement or an arbitration proceeding upon the express agreement of the parties to the arbitration agreement. However, the Nigerian Courts or an arbitral tribunal will pierce the corporate veil to bind a third party group company, where the arbitral tribunal or the Court is persuaded that the existence of a separate corporate entity is merely a façade. (Alade v. Alic Nigeria LTD (2010) 19 NWLR PART 1226, 111. (Supreme Court of Nigeria).
Are arbitration clauses considered separable from the main contract?
Arbitration clauses are generally considered to be distinct and separable from the main contract and are not treated as invalid because the main contract is invalid.
Accordingly, an arbitration clause which forms part of a contract is treated as an agreement independent of the other terms of the contract and a decision that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (Section 12(2) of the Act). However, in certain limited cases, for example fraud, the arbitration agreement may be declared invalid on the same grounds as the wider contract. (United World Inc. v. M.T.S LTD (1998)10 NWLR (PART 568) 106) Court of Appeal.
Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunals jurisdiction and competence?
The principle of competence-competence is recognized in Nigeria. An arbitral tribunal is competent to rule on questions pertaining to its own jurisdiction and on any objections with respect to the existence or the validity of an arbitration agreement. (Section 12(1) of the Act).
An arbitral tribunal may rule on the question of its jurisdiction either as a preliminary question or in an award on the merits and such ruling shall be final and binding on the parties. (Section 12(4) of the Act).
In practice, some parties still approach the Courts to determine the jurisdiction of the tribunal even after the tribunal may have ruled on this question.
The Court must however be satisfied that there are good reasons for its intervention.
The Court may also revisit the question of the tribunals jurisdiction at the time of the enforcement of the award, if the party resisting enforcement seeks to prove that the arbitration agreement is invalid.
Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
The law provides that an arbitration agreement shall be in writing. (Section 1(1) of the Act). The attitude of the Nigerian Courts towards arbitration is an embodiment of a pro-enforcement bias. Accordingly, the Courts will not only enforce arbitration awards, arbitration agreements will generally be enforced, such that even loose and brief expressions such as arbitration to be settled in a (named place) or suitable arbitration clause will often be given sufficiently precise meaning to ensure arbitration. (Kano State Urban Development Board v. Fanz Construction Co. LTD (1990) 4 NWLR (PART 142) 1. However, clearly worded and well thought out arbitration clauses are preferable.
Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
Complex and high value commercial disputes are often resolved by both institutional and ad hoc international arbitration, although ad hoc arbitrations are more common in oil & gas and construction disputes. Either the Arbitration Rules in schedule 1 of the Act, the UNCITRAL Arbitration Rules or any other international arbitration rules acceptable to the parties will apply to ad hoc international arbitrations taking place in Nigeria. (Section 53 of the Act).
What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
Neither the Act, nor the Rules of Arbitration in schedule 1 of the Act make provision for multi-party arbitration. However, a multi-party arbitration may take place pursuant to the agreement of the parties or an Order of joinder of parties or of the consolidation of separate arbitration proceedings.
With regards to the appointment of arbitrators in a multi-party arbitration, the parties may agree that the appointing authority designated by them should appoint either the sole arbitrator or all the three arbitrators, where the agreement(s) provide for three arbitrators. Alternatively, the parties may agree that all the Claimant parties appoint one arbitrator, while the Respondent parties appoint the second arbitrator and the third/presiding arbitrator is appointed by the arbitrators appointed by the parties. Where there is default by the Claimant parties or the Respondent parties to appoint an arbitrator, or default by the two party appointed arbitrators to appoint a third/presiding arbitrator, then the appointing authority will make the appointment. (Section 44 of the Act).
The appointing authority means the Secretary-General of the permanent Court of Arbitration at the Hague. (Section 54(2) of the Act).
17.Request for arbitration
How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
Unless otherwise agreed by the parties, arbitral proceedings are commenced by written notice of arbitration by one party usually the Claimant to the other party, usually the Respondent. (Section 17 of the Act & Article 3 of the Arbitration Rules in Schedule 1 of the Act).
The same limitation period, usually six years from the date of the accrual of the cause of action, for simple contracts, apply to arbitrations as to other legal proceedings in Nigeria.
18.Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
The arbitral tribunal shall decide the dispute in accordance with the law chosen by the parties. A choice of law by the parties is taken to be the substantive law of the country chosen by the parties. Accordingly, the tribunal shall decide the dispute in accordance with the rules in force in the country whose laws the parties have chosen as applicable to the substance of their dispute. (Section 47(1) of the Act).
Where the substantive law is unclear or not determined by the parties, the arbitral tribunal shall apply the law determined by the conflict of law rules which it considers applicable. (Section 47(3) of the Act).
19.Choice of arbitrators
Does the law of your jurisdiction place any limitations in respect of a partys choice of arbitrator?
Nigerian Law does not place any restrictions on the parties choice of arbitrator(s). However, the parties themselves may agree certain qualifications for the appointment of arbitrators in their agreement. The usual qualifications for the appointment of arbitrators are the independence and impartiality of the proposed arbitrator(s).
Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
Yes. Non-nationals can act, and often do act as arbitrators in Nigeria. Except otherwise agreed by the parties, no person shall be disqualified from being appointed as an arbitrator by reason of his nationality. (Section 44(10) of the Act).
The parties may however by agreement prohibit the appointment of a non- national as an arbitrator. The appointment of a non-national as an arbitrator is however subject to the Nigerian Immigration Law requirement of an entry visa into Nigeria by the foreign arbitrator.
21.Default appointment of arbitrators
How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
If a sole arbitrator is to be appointed in an international arbitration, either party may propose to the other the names of one or more persons, one of whom would serve as the sole arbitrator. (Section 44(1) of the Act). If the parties have not reached agreement on the choice of a sole arbitrator within 30 days after the receipt of each partys proposal, then the sole arbitrator shall be appointed by the appointing authority, at the request of either of the parties. (Section 44(2) & (3) of the Act).
If three arbitrators are to be appointed and one party defaults in appointing an arbitrator within 30 days after the receipt of the other partys notification of appointment of an arbitrator, or if within 30 days after the appointment of the second arbitrator, the two arbitrators have not agreed on the choice of the presiding arbitrator, the appointing authority shall appoint either the second arbitrator or the presiding arbitrator as the case may be, upon the request by any of the parties. (Section 44(5), (6), & (7) of the Act).
The Courts do not have any role to play where the selection mechanism fails for any reason, in an international arbitration. It is the appointing authority designated by the parties who makes the appointments in the event of any default by the parties.
Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
Although the Act does not provide for the immunity of arbitrators, the general rule is that arbitrators are immune from suits. However, a breach of the duty of care entitles a party to sue for negligence against an arbitrator. (Commercial Arbitration Law in Nigeria by Fabian Ajogwu page 85).
23.Securing payment of fees
Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
The tribunal will generally require the parties to provide advance deposits in respect of fees and expenses. If the required deposits are not paid in full within 30 days after the receipt of the requests, the arbitral tribunal shall so inform the parties in order that one or the other of them may make the required payment, and if such payment is not made, the arbitral tribunal may order the suspension or termination of the arbitral proceedings. (Section 50 (1) & (4) of the Act). The LCIA and the ICC Court of Arbitration have recently acted as fundholders in ad hoc arbitrations taking place in Nigeria involving foreign and Nigerian arbitrators.
24.Grounds of challenge
On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrators impartiality or independence. (Section 45(3) of the Act).
Other grounds for challenging an arbitrator are mental and physical incapacity, refusal or failure to properly conduct the proceedings or making the award. The parties may determine the procedure to be followed in challenging an arbitrator. Where no procedure is determined by the parties, a party who intends to challenge an arbitrator shall send his notice of challenge within 15 days after the appointment of the challenged arbitrator has been notified to the challenging party or within 15 days of becoming aware of any such circumstances giving rise to justifiable doubts as to the arbitrators impartiality or independence.
If the other party does not agree to the challenge and the challenged arbitrator does not withdraw, the decision on the challenge shall be made by the appointing authority. (Section 45(9) of the Act).
Whilst the IBA Guidelines on conflicts of interest are not binding, they will generally be considered by an arbitral tribunal or a Court deciding on the challenge.
The test often applied by the Court is whether a fair-minded observer would conclude that there is a real likelihood of bias.
25.Types of relief
What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?
Both the arbitral tribunal and the Courts have the power to grant interim relief. The interim relief available from the tribunal are in respect of measures for the conservation of the goods forming the subject matter of the dispute, such as ordering their deposit with a third person or the sale of perishable goods. Such interim measures may be established in the form of an interim award and the tribunal is entitled to require security for the costs of such measures.
A request for interim measures addressed by any party to the Court shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement. (Section 13 of the Act and Article 26 of the Rules of Arbitration in Schedule 1 of the Act).
The Act does not provide for anti-suit injunctions where proceedings are brought elsewhere in breach of an arbitration agreement. However, as provided in Sections 4 and 5 of the Act, upon the application of any party to an arbitration agreement, the Nigerian Courts will stay proceedings pending arbitration in a foreign forum. See The Owners of M.V. Lupex v. Nigerian Overseas Chartering and Shipping LTD (2003) 15 NWLR (part 844) 469, where Clause 7 of the charter party provided for arbitration in London under English Law. A dispute arose and arbitration was commenced in London. In the course of the arbitration proceedings, the Respondent commenced proceedings at the Federal High Court, Lagos. The Appellants application for stay of proceedings pending arbitration in London was refused. Its appeal to the Court of Appeal was dismissed, necessitating a further appeal to the Supreme Court. In granting the application for stay of proceedings pending the London arbitration, the Supreme Court held that so long as an arbitration clause is retained in a valid contract and the dispute is within the contemplation of the arbitration clause, the Court ought to enforce the arbitration agreement.
26.Security for costs
Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
Nigerian Courts have power under the Rules of Court to make an Order for security for costs. The Order for security for costs is to ensure that if the Claimant fails in his action, the Defendant who must have incurred expenses in defending the action will have something to fall back upon as compensation, particularly where there is good reason to believe that the Claimant company may be unable to pay the costs of the Defendant if he succeeds in his defence and where the plaintiff is ordinarily resident abroad in which case execution may be difficult. There is however, no provision for security for costs in the Arbitration Act.
Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (e.g. general duties of the tribunal and/or the parties)?
The Act does not list any of its provisions that are mandatory. However, one of the mandatory rules that govern the conduct of arbitration in Nigeria is that of fair hearing and the equal treatment of the parties. Accordingly, in any arbitral proceedings, the arbitral tribunal shall ensure that the parties are accorded equal treatment and that each party is given full opportunity to present his case. (Section 14 of the Act).
The tribunal is also mandated to adopt cost effective procedures that avoid unnecessary delay and expense. While the Courts are statutorily mandated to suspend legal proceedings brought in breach of an arbitration agreement (Section 4(1) of the Act), the parties on their part must do all things necessary for the proper and expeditious conduct of the arbitral proceedings.
28.Refusal to participate
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
Unless otherwise agreed by the parties, if without showing sufficient cause the Respondent fails to state his defence as required under the Act, the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the Claimants allegations and if any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and give a fully reasoned award. (Section 21 of the Act).
What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
The general practice is the admission by the arbitral tribunal of oral and documentary evidence presented by fact and expert witnesses. The strict rules of evidence do not apply to arbitration proceedings in Nigeria, pursuant to Section 1(4)(a) of the Evidence Act, which expressly excludes arbitration from its application. This is however, without prejudice to the applicability of the more fundamental and wider rules of evidence to arbitration. The arbitral tribunal therefore ultimately has the power to determine the relevance, admissibility, materiality and the weight of any evidence placed before it (Section 15(3) of the Act).
The parties may agree, as is often the practice, that the IBA Rules of taking Evidence in International Arbitration will apply to the proceedings in whole or in part.
Will the courts in your jurisdiction play any role in the obtaining of evidence?
Notwithstanding any agreement of the parties to the contrary, the Court may, upon application by any party, Order that a writ of subpoena ad testificandum or of subpoena duces tecum shall issue to compel the attendance before any arbitral tribunal of a witness wherever he may be in Nigeria. The Court may equally Order that a writ of habeas corpus ad testificandum shall issue to bring up a prisoner for examination before any arbitral tribunal. (Section 23(1) & (2) of the Act).
What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
The parties to an arbitration proceeding may submit with their statements all the documents or other evidence they consider to be relevant at the arbitral proceedings. (Section 19(2) of the Act). Unless otherwise agreed, the tribunal has powers to determine the extent of documents production. In practice, the parties generally produce those documents upon which they rely, and if necessary, request the production of certain documents from the opposing party. If one party has made a request to the other for the production of documents specified with particularity, and that party has refused to produce them, the arbitral tribunal will make it clear that it is likely to draw an adverse inference from the refusal to disclose the documents, unless a reasonable excuse is given. (See the Law And Practice of Arbitration in Nigeria op.cit. at page 236). The Court may also compel a party to produce documents in his custody.
Is it mandatory to have a final hearing on the merits?
33.Seat or place of arbitration
If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
The seat of the arbitration is the legal as opposed to the physical place of the proceedings. Accordingly, the place of the arbitral proceedings shall be determined by the arbitral tribunal having regard to the circumstance of the case, including the convenience of the parties, and unless otherwise agreed by the parties, the arbitral tribunal may meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for the inspection of documents, goods, or other property. (Section 16 of the Act and NNPC v. Lutin Investment LTD (2006) 2 NWLR (PART 965) 506).
Can the tribunal decide by majority?
35.Limitations to awards and relief
Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
Dissenting opinions are permitted under Nigerian Law and they are common in practice. The award must usually be signed by all the members of the tribunal. However, the signatures of a majority of the members of the tribunal shall suffice, if the reason for the absence of any signature is stated. (Section 26(2) of the Act). Where an arbitrator does not assent to an award, he need not sign it. He may set out his own view of the case in a dissenting opinion. The dissenting opinion may be annexed to the award or it may be delivered to the parties separately for their information only. (The Law And Practice of Arbitration & Conciliation, (op.cit.) at page 243).
What, if any, are the legal and formal requirements for a valid and enforceable award?
The parties are free to agree on the form of the award. The Act however provides that the award must be in writing and signed by the arbitrator or arbitrators. Where the tribunal comprises of more than one arbitrator, the signatures of a majority of the members shall suffice, if the reason for the absence of any signature is stated. The arbitral tribunal shall also state on the award the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms. The date the award was made and the place of arbitration which shall be deemed to be the place where the award was made shall also be stated on the award (Section 26(2) & (3) of the Act).
What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
The tribunal is not subject to a time limit in rendering its award. However, the tribunal must bring the arbitral proceedings to an end by making an award within a reasonable time from the commencement of the arbitration. Unless another period has been agreed upon by the parties, a party may within 30 days of the receipt of an award and with notice to the other party, request the tribunal to correct in the award any errors in computation, any clerical or typographical errors, or to give an interpretation of a specific point or part of the award. If the arbitral tribunal considers the request to be justified, it shall within 30 days of the receipt of the request, make corrections or give the interpretation, and such correction and interpretation shall form part of the award. The arbitral tribunal may, also on his own volition and within 30 days from the date of the award, correct any error in the award. (Section 28(1) & (2) of the Act).
Are parties able to recover fees paid and costs incurred? Does the loser pays rule generally apply in your jurisdiction?
The award of costs is generally at the discretion of the arbitral tribunal. The general principle is that the cost of the arbitration shall be borne by the unsuccessful party. However, unless otherwise agreed, the arbitral tribunal, taking into account the circumstances of the case, shall be free to determine which party shall bear such costs, or may apportion such costs between the parties if it determines that apportionment is reasonable. (Article 40 (1) & (2) of the Rules of Arbitration).
40.Interest on the award
Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
The Act does not provide for the award of interest on the principal claim, or any interest at all. However, interest is awarded in practice at the discretion of the arbitral tribunal at such rates as it considers appropriate up to the date of the award and from the date of the award up to the date of payment on the whole or part of any amount awarded in respect of the principal claim and any award as to costs. There are no applicable mandatory or customary rates of interest.
41.Grounds for appeal
Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
42.Other grounds for challenge
Are there any other bases on which an award may be challenged, and if so what?
A party may apply to Court to challenge an award on the grounds that the tribunal lacks the jurisdiction to make the award, the incapacity of one of the parties, the invalidity of the arbitration agreement, the failure to give proper notice of the appointment of an arbitrator, or the inability of a party to present its case. Other grounds include the fact that the subject matter of the dispute is incapable of settlement by arbitration under the laws of Nigeria or that the enforcement of the award is against the public policy of Nigeria. Sections 48 and 52(2) of the Act contain exhaustive lists of the grounds for challenging an award. Both sections are mandatory provisions of the Act and cannot be excluded by the agreement of the parties.
43.Modifying an award
Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
As noted above, there is no right of appeal against an award under Nigerian Law. However, the parties have the right to challenge an arbitral award and to apply within 90 days from the date of the award to set aside the award under Sections 48 and 52 of the Act. The parties cannot agree to exclude their right to challenge an award under Sections 48 and 52 of the Act.
44.Enforcement of set-aside awards
Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
It is mandatory for Nigerian Courts to recognize and enforce foreign arbitral awards, irrespective of the country in which the award is made. The Act does not make provision for the enforcement of an award that has been set aside or suspended by the Courts in the seat of arbitration. It is doubtful however, whether Nigerian Courts will enforce an award which has been set aside by the Courts in the seat of arbitration. Each case will in practice, be determined by its peculiar facts and circumstances.
What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
The Act incorporates into Nigerian Law the provisions for the recognition and enforcement of awards which are found in the New York Convention (Sections 48 and 52). Current Nigerian case-law on the enforcement of arbitral awards generally reveal a pro-enforcement bias on the part of the Courts, such that the Courts will only rarely refuse to enforce an arbitral award on the limited grounds of public policy and proven misconduct of the arbitrator(s).
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
Nigerian Law does not recognise the sovereign immunity of the Nigerian state or the immunity of any government agency in the enforcement of arbitral awards against the Government of Nigeria or any of its agencies, where the dispute arises from a commercial/contractual relationship. Accordingly, where the Government of Nigeria or any of its agencies enters into an international commercial contract containing an arbitration clause, it will be bound by the arbitration clause like any other person. See the case of Trendtex Trading Corporation Ltd v. Central Bank of Nigeria (1977) ALL E.R. 881, where, on a claim of sovereign immunity by the Central Bank of Nigeria as an agent of the Government of Nigeria, the English Court of Appeal, per Lord Denning M.R. rejected this contention and held inter alia, that: if a government department goes into the market places of the world and buys boots and cement as a commercial transaction that government should be subject to the rules of the market place. Nigerian Courts also adopt this approach to sovereign immunity in relation to the enforcement of arbitral awards, realising that it is more in keeping with the dignity of a sovereign to subject himself to the rule of law. (The Law And Practice of Arbitration And Conciliation in Nigeria, op.cit. at page 111-112).
To what extent are arbitral proceedings in your jurisdiction confidential?
48.Evidence and pleadings
What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
Under Nigerian Law, the pleadings filed and the evidence produced during arbitral proceedings are confidential. Except where they are publicly available, the materials produced in an arbitration may be used in other arbitral or Court proceedings only with the consent of the relevant party or parties and if an Order for disclosure is made by the Court.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Although foreign lawyers are not eligible to appear as counsel in Nigerian Courts except they have been formally admitted to practice in Nigeria. Foreign lawyers are however permitted to appear as Counsel in international arbitration proceedings having its seat in Nigeria. Lawyers conducting proceedings in Nigeria (whether as counsel or arbitrators) will primarily be subject to any applicable ethical codes or professional standards in their own jurisdiction.
Nigerian Barristers and Solicitors conducting proceedings as counsel or arbitrators in international arbitrations taking place in Nigeria are bound by the Rules of Professional Conduct of the Nigerian Bar Association. Although the IBA Rules of ethics for International Arbitrators and the IBA Guidelines on conflict of interest are generally non-binding, they would apply as a guide in international arbitration proceedings taking place in Nigeria.
Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
Subject to the mandatory procedural rules of fair hearing, and the impartiality and independence of the tribunal, arbitral proceedings are conducted in accordance with the procedure contained in the Arbitration Rules set out in the First Schedule to the Act, or the UNCITRAL Arbitration Rules or any other international arbitration rules acceptable to the parties. (Section 53 of the Act).
Where the Rules contain no provision in respect of any matter related to or connected with the particular arbitral proceedings, the arbitral tribunal may conduct the proceedings in such manner as it considers appropriate to suit the arbitration and the parties involved, and also to ensure fair hearing. (Section 15(1) & (2) of the Act).