OVERVIEW OF INTERNATIONAL ARBITRATION IN NIGERIA

OVERVIEW OF INTERNATIONAL ARBITRATION IN NIGERIA

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INTERNATIONAL ARBITRATORS IN NIGERIA

The main arbitration law of Nigeria is the Arbitration and Conciliation Act 1988 (ACA) (Cap A18 Laws of the Federation of Nigeria 2004). ACA is largely based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law, with minimal differences. Nigeria is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and ACA domesticated Nigeria’s treaty obligations arising under the New York Convention. Nigeria is a party to some Regional Conventions concerning the recognition and enforcement of arbitral awards. The convention is set out in Schedule 2 to the Arbitration and Conciliation Act, pursuant to Section 54(1) of the Act.

The basic legal requirement of an arbitration agreement under this law is that an arbitration agreement must be in writing or must be contained in a written document signed by the parties. Section 1 of ACA provides that every arbitration agreement shall be in writing and contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of communication, which provide a record of the arbitration agreement, or in an exchange of points of claim and of defence in which the existence of an arbitration agreement is alleged by one party and not denied by another.

Any reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if such contract is reduced in writing and the reference makes that clause part of the contract. This provision submits that arbitration must be consensual and indicates that an arbitration agreement may either be an express clause in a contract whereby parties agree to refer future disputes to arbitration, or in a separate document, whereby parties agree to submit their existing dispute to arbitration. An arbitration agreement may also be inferred from written correspondence or pleadings exchanged between parties.

According to the London Court of International Arbitration Rules (LCIA) where any agreement, submission or reference is made or evidenced in writing, whether signed or not provides for arbitration under the rules. The parties to the arbitration will be taken to have agreed in writing that any arbitration between them shall be conducted in accordance with the LCIA Rules.

The industry sectors that mainly utilize the ADR mechanisms according to the London Court of International Arbitration (LCIA) are usually the banking and finance, energy and resources and the transport and commodities sectors of the economy. For instance, in 2018 the number of banking and finance arbitration under the LCIA Rules grew, representing almost 29% of all the cases

Agreement Types

According to the statistics of international arbitration, the four most common agreement types seen under the LCIA Rules are;

  • Loan or other facility agreements
  • Shareholders agreement, Share purchase agreement and joint ventures agreement
  • Service agreement and finally,
  • Sales of good agreement

According to the statistics, in 2018 the number of shareholders agreement, share purchase agreements and joint venture agreements increased significantly, representing 21% of the international arbitration agreements while the number of loan facility agreements that featured in disputes was about 21% in 2018.

Request for International Arbitration

Nigeria is gradually becoming one of the important seat and venue of international arbitration in the world. However, the international arbitration in Nigeria still mainly involved the agreement or contract to be performed or being performed in Nigeria. However, Nigerian arbitrators travel across the world to involve in arbitral proceedings or another. Unlike litigation where a lawyer called to practice law in a particular country can represent a client in court in such a country, arbitration creates an open border for the arbitrators of any National to sit and decide a matter in another jurisdiction or country, as long as such person is appointed to do so.

According to Article 1 of the LCIA Rules, any party wishing to commence arbitration under the LCIA Rules shall deliver to the Registrar of the LCIA Court a written request for arbitration which will be accompanied with required documents.

In conclusion, some matters are generally more suitable for litigation in Nigeria than arbitration. For instance, applications for immediate enforcement of rights or preservation of res, the enforcement of fundamental human rights, application for Anton Pillar, Mareva and other injunctions, are less suitable for arbitration than litigation. The major benefit of arbitration is that it saves time and enables businesses or parties to quickly understand their obligations and rights where any disputes have arisen under any contract or business agreement

The fact that there are several international arbitral bodies now functioning in Nigeria and there is a lot of legal practitioners and professionals who are also of members of international arbitration bodies such as Chartered Institute of Arbitrators(UK), London Court of International Arbitration and among others, has led to the development and practice of international arbitration in Nigeria.

 

By Resolution Law Firm

Email: info@resolutionlawng.com