Transcript legal framework for international commercial arbitration /adr in nigeria

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 CRESCENT
ONIRU PRIVATE ESTATE
VICTORIA ISLAND EXTENSION
LAGOS – NIGERIA.
Email: [email protected]
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
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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 law
Section 34 Federal Act
 Section 59[1] Lagos Law
 Applications to the Court (Arbitration Procedure Rules)
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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 Agreement
o Sections 3[3] [4] and [5]of the Lagos State Arbitration Law
 Interim Measures / Preliminary Orders
o Section 21 of the Lagos State Arbitration Law
o Section 21[3] of the Lagos State Arbitration Law
o Section 25 of the Lagos State Arbitration Law
o Section 26 of the Lagos State Arbitration Law
o Section 27 of the Lagos State Arbitration Law
o Section 28 of the Lagos State Arbitration Law
o Section 29[1][2] and [3] of the Lagos State Arbitration Law
 Specific Powers of the Arbitral Tribunal on Remedies
o Section 38 of the Lagos State Arbitration Law
o Section 38[2] of the Lagos State Arbitration Law
 Appointment of Umpire
o Section 9[1] [a] and [b] of the Lagos State Arbitration Law
o See section 9[2] [a-d] of the State Arbitration Law
o 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 Law
o Section 14[2][a] and [b] of the Lagos State Arbitration Law
 Immunity of Arbitrators
o Section 18[2] and [3] of the Lagos State Arbitration Law
 Applicable Arbitration Rules
o Section 31 of the Lagos State Arbitration Law
 Applicability of Limitation Laws
o Section 35[5] of the Lagos State Arbitration Law
 Consolidation, Concurrent Hearing and Joinder of Parties
o 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
 Interest
o Section 46 of the Lagos State Arbitration Law
 Notification of Award / Arbitrator’s Lien on Award
o Section 49 [1] of the Lagos State Arbitration Law
o Section 49 [2] of the Lagos State Arbitration Law
o Section 49 [3] [a] [b] [c] of the Lagos State Arbitration Law
o Section 49 [5] of the Lagos State Arbitration Law
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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.
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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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