LEGAL FRAMEWORK FOR INTERNATIONAL COMMERCIAL ARBITRATION /ADR IN NIGERIA

BY

ADEDOYIN OYINKAN RHODES-VIVOUR (MRS.) FCIARB CHARTERED ARBITRATOR, CEDR [UK] ACCREDITED MEDIATOR

MANAGING PARTNER DOYIN RHODES-VIVOUR & CO.

9, SIMEON AKINLONU CRESCENTONIRU PRIVATE ESTATE

VICTORIA ISLAND EXTENSIONLAGOS – NIGERIA.

Email: doyin@drvlawplace.com

LEGAL FRAMEWORK [INTERNATIONAL]

United Nations Commission on International Trade Law [UNCITRAL Model Law [1985; Revised 2006].

UNCITRAL Arbitration/Conciliation Rules.

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

National courts are required to recognize and enforce foreign awards save in a few instances.

Maritime Conventions Hague Rules Hague/Visby Rules Hamburg Rules Multi-Modal Convention 1980 Rotterdam Rules

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LEGAL FRAMEWORK [DOMESTIC]

Arbitration and Conciliation Act Cap A18 Laws of the Federation of Nigeria 2004.

Domesticated the New York Convention which was ratified by Nigeria on the 17th day of March 1970.

State Arbitration Laws.

Lagos State Arbitration Law

Importance of the laws of the place of arbitration/seat of the arbitration

Arbitration proceedings are subject to the mandatory provisions of the law of the place of the seat.

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NATIONAL MARITIME LEGISLATION/ADR

Admiralty Jurisdiction Act Effect of section 20 MV Panormous Bay“It is the contention of the respondent that the clause inserted in the bills of lading were done without any consultation whatsoever with the respondent or its predecessor in title as it is a standard form contract usually lopsided in favour of the carriers, which was not bona fide, as its sole aim is to frustrate legitimate claims having underserved jurisdictional advantage. I am quite satisfied that the learned trial judge, apart from the fact that he has given due consideration to S.5[2][b] of the Arbitration and Conciliation Act, he has also considered the legality, genuineness and reasonableness of the arbitration clause contained in the bills of lading”. The Hon. Justice Galadima [JSC] – M.V Parnomous Bay V. Olam (Nig) Plc

“Section 20 of the Admiralty Jurisdiction Act has altered the hitherto existing position in admiralty matters thereby modifying section 2 and 4 of the Arbitration and Conciliation Act and limited enforceable arbitration agreement to those having Nigeria as their forum.

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MV Lupex Arbitration agreement does not oust the court’s jurisdiction but is an agreement of the parties which must be enforced. Duty on court to enforce arbitration agreements was reiterated.

Federal High Court Act Section 17

Federal High Court Rules Order 52 Rules 2, 8, 9, 13, 16 and 17

ARBITRATION AND THE NIGERIAN COURTS

Section 1(2) of the Evidence Act states that the provisions of the Evidence Act shall not apply to arbitral proceedings.

Rules of Court do not apply to arbitral proceedings.

Ras Pal Gazi Construction Company Ltd V FCDA 2001 10 NWLR part 722 pg 559 at 572 paras D – F, The Supreme Court of Nigeria declared that an Award is at par with a judgement of the court has the same force and effect and cannot be tampered with except as provided in the Act.

Courts not to interfere except as provided by the lawSection 34 Federal Act Section 59[1] Lagos Law

Applications to the Court (Arbitration Procedure Rules)5

POWERS OF THE COURT IN RELATION TO ARBITRATION PROCEEDINGS

ROLE PRIOR TO CONSTITUTION OF ARBITRAL TRIBUNAL / COMMENCEMENT OF PROCEEDINGS

Section 2 ACA – arbitration agreement irrevocable except by agreement / leave of court Sections 4 & 5 ACA – Stay of proceedings Section 7 – Appointment & challenge of arbitrators

COURT’S ROLE DURING THE PROCEEDINGS

Section 23 of ACA – issuance of writs of subpoena / habeas corpus Section 13 / Article 26 – Interim measure of protection

POST AWARD ROLE OF THE COURTS

Section 29 of ACA – Settling aside of award Section 30(2) – Misconduct of arbitrator Section 31(1)and 32 – Recognition and enforcement of awards Section 48 , 51 and 52– Other factors necessitating the setting aside of an award under international commercial arbitration.

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NEW PROVISIONS OF THE LAGOS STATE ARBITRATION LAW

Form of Arbitration Agreemento Sections 3[3] [4] and [5]of the Lagos State Arbitration Law

Interim Measures / Preliminary Orderso Section 21 of the Lagos State Arbitration Lawo Section 21[3] of the Lagos State Arbitration Lawo Section 25 of the Lagos State Arbitration Lawo Section 26 of the Lagos State Arbitration Lawo Section 27 of the Lagos State Arbitration Lawo Section 28 of the Lagos State Arbitration Lawo Section 29[1][2] and [3] of the Lagos State Arbitration Law

Specific Powers of the Arbitral Tribunal on Remedieso Section 38 of the Lagos State Arbitration Lawo Section 38[2] of the Lagos State Arbitration Law

Appointment of Umpireo Section 9[1] [a] and [b] of the Lagos State Arbitration Lawo See section 9[2] [a-d] of the State Arbitration Lawo Section 9[2][a] of the Lagos State Arbitration Law o Section 9[2][b] of the Lagos State Arbitration Law o Section 9[2][c] of the Lagos State Arbitration Law

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Consequence of Resignation of an Arbitrator.o Section 14[1][a] and [b] of the Lagos State Arbitration Lawo Section 14[2][a] and [b] of the Lagos State Arbitration Law

Immunity of Arbitratorso Section 18[2] and [3] of the Lagos State Arbitration Law

Applicable Arbitration Ruleso Section 31 of the Lagos State Arbitration Law

Applicability of Limitation Lawso Section 35[5] of the Lagos State Arbitration Law

Consolidation, Concurrent Hearing and Joinder of Partieso Section 40[1][a][b] of the Lagos State Arbitration Law o Section 40[2] of the Lagos State Arbitration Law o Section 40[3] of the Lagos State Arbitration Law

Interesto Section 46 of the Lagos State Arbitration Law

Notification of Award / Arbitrator’s Lien on Awardo Section 49 [1] of the Lagos State Arbitration Lawo Section 49 [2] of the Lagos State Arbitration Lawo Section 49 [3] [a] [b] [c] of the Lagos State Arbitration Law o Section 49 [5] of the Lagos State Arbitration Law 8

JURISPRUDENCE OF NIGERIAN COURTS

Owners of M. V Lupex vs. Nigeria Overseas Chartering and Shipping Ltd [2003] 15NWLR Part 844 at 469

Duty on court to ensure observance of arbitral clause

“ So long as an arbitration clause is retained in a contract that is valid and the dispute is within the contemplation of the clause, the court ought to give due regard to the voluntary contract of the parties by enforcing the arbitration clause as agreed by them”.

The court should not been seen to encourage the breach of a valid arbitration agreement particularly if it has international flavour – relying on the words of Ehpraim Akpata JSC [Rtd] “The Nigerian Arbitration Law”

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ANTI SUIT INJUNCTIONS

Remedy available in domestic (local) courts to prevent proceedings started or continuing in other jurisdictions

Local courts determines that it is the proper jurisdiction to hear suit

Effect on arbitration – bars or ignores arbitration in foreign jurisdiction. Justice Schwebel former court of international court of Justice stated thus:

“When a domestic court acts, it acts as an organ of the State for whose actions that the State is internationally responsible. When a domestic court issues an anti-suit injunction blocking the international arbitration agreed to in a contract, that court fails to refer the parties to arbitration…” In substance it fails anticipatorily to “recognise arbitral awards as binding and enforce them…” This is room to conclude that an anti-suit injunction is inconsistent with the New York Convention…….”

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MEDIATION AND THE COURTS

Nigerian legal system has always recognized the compatibility of ADR with the court system.

Section 24 High Court Laws “In any action in the High Court the courts may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof”.

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MEDIATION AND THE GOVERNMENT

Citizen Mediation Centres Established under relevant State laws

Provision of free alternative dispute resolution services to indigent members of the public.

COURT CONNECTED ADR

Lagos, Kano and Abuja Multidoor Courthouses

Multidoor Courthouse

Mode of Referal Practice Directions

The Presiding Judge ordering and or referring an on-going case to the LMDC.

The Director of the LMDC or the ADR or the ADR Judge inviting disputing parties to a meeting to explore options towards an amicable resolution of their dispute.

Any of the parties to an agreement stipulating mediation, arbitration or any other ADR process in the resolution of their dispute.

Any of the parties, their counsel or any designated officer of the court at any time prior to or after the filing or commencement of an action in the court.

Anyone with interest in a dispute and or belief that the LMDC could be beneficial to an on-going dispute or the parties.

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SOME ARBITRAL/ADR INSTITUTIONS / FACILITIES IN NIGERIA

Lagos Regional Centre for International Commercial Arbitration

Lagos Court of Arbitration

Chartered Institute of Arbitrators, London [Nigeria Branch]

Maritime Arbitrators Association of Nigeria

Institute of Chartered Mediators of Nigeria

Lagos Multi-door Courthouse

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CONCLUSION

Nigeria has an up to date legal framework for the conduct of arbitration. The Federal Act is the modification of the 1985 UNCITRAL Model Law. The Lagos Law No. 10 incorporates the recent 2006 amendments to the Model Law. Nigeria has domesticated the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. Nigerian courts understand the nature of arbitration agreements and its binding nature. Facilities exist in Nigeria for the conduct of arbitration. Nigeria has a crop of highly trained arbitrators and alternative dispute resolvers.

Presently most maritime arbitration involving Nigerian parties or with close connection to Nigeria are conducted outside Nigerian shores. Often times Nigerian consignees believe that they are being put to great cost and expenses particularly as these disputes may be arbitrated in Nigeria. Arbitration is meant to be cost effective. Encouraging the development of other regions apart from the traditional ones can only enhance the cost effectiveness of the process. Concerted efforts and co-operation need to be made to promote arbitration/ADR centres within different geographical regions. However all countries of the region must ensure suitable legal framework, capacity in the field, support of the judiciary and conducive infrastructure in their bid for recognition as places of international arbitration.

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