I INTRODUCTION

Arbitration in Nigeria is regulated by two pieces of legislation: the federally enacted Arbitration and Conciliation Act, contained in Chapter A18 of the Laws of the Federation of Nigeria 2004 (ACA) and the Arbitration Law of Lagos State No. 55, Vol. 42 of 2009 (Lagos State Law). The reason there is a federal law regulating arbitration is historical; prior to the promulgation of the ACA as a federal decree by Nigeria's federal military government in 1988, most states in the federation had their own laws regulating arbitration within their own territory. This was because, under the legislative lists in Nigeria's Constitutions of 1960, 1963 and 1979, the power to make laws regulating contracts lay with the states (or regions pre-1967). During the period of military government, Nigeria was a federation in name only, and the federal government made laws in respect of matters that state governments were constitutionally empowered to legislate upon. After 29 May 1999, when the current constitutional provisions took effect, it became possible for state legislatures to once more enact legislation regulating arbitration within their respective territories. Thus far, only Lagos State has enacted a law regulating arbitration.

The ACA, which is based on the UNCITRAL Model Law, governs both domestic and international arbitration. Part I of the ACA applies to domestic commercial arbitration while Part III of the ACA applies only to international commercial arbitration. The Lagos State Law makes no distinction between domestic and international arbitration, and draws heavily on the English Arbitration Act, as well as incorporating some of the 2006 amendments to the UNCITRAL Model Law. Notable provisions introduced by the Lagos State Law to remedy perceived shortfalls in the ACA include Sections 21 to 30 of the Lagos State Law, which empower the court to issue interim measures, whether in the form of an award or in another form, or to maintain or restore the status quo pending the determination of the dispute. These provisions capture two scenarios: where a party approaches the court and makes an application for an interim measure before or during arbitral proceedings; and where the arbitrator grants an interim measure in the form of an interim award and such interim award needs to be enforced by the court.

The courts play a supportive and supervisory role over arbitral tribunals, and both laws limit the extent of the courts' intervention in arbitral proceedings. Some of these are applications to court for enforcement and setting aside of an award, applications seeking coercive orders, or applications for a stay of proceedings or the appointment of an arbitral tribunal. There are no specialist tribunals for arbitration in Nigeria; matters related to arbitration must go to a High Court in the first instance and appeals may be made to the appellate courts. Nigeria has both federal and state High Courts, and the High Court to which matters related to arbitration must be referred is determined by the subject matter of the arbitration, with matters within the exclusive jurisdiction of the Federal High Court going to that court and all others to state High Courts.

Arbitration is widely accepted in Nigeria, and there is an increasing use of arbitration as a means of resolving commercial disputes.

II THE YEAR IN REVIEW

The Nigerian branch of the Chartered Institute of Arbitrators launched a Micro, Small and Medium, Enterprises (MSME) Arbitration Scheme in an effort to promote the use of arbitration by small-scale enterprises. The scheme is intended to provide a swift and cost-effective way for MSMEs to resolve commercial disputes that Nigerian courts continue to be unable to provide. In order for MSMEs to take full advantage of this scheme, they will have to incorporate arbitration clauses in the contracts, or sign an agreement to submit to arbitration.

The Morocco–Nigeria Bilateral Investment Treaty (BIT) was signed by Morocco and Nigeria in December 2016 and was ratified by the Moroccan parliament on 30 August 2017. It has yet to be ratified by Nigeria.

Also, courts in Nigeria have further considered what constitutes arbitral misconduct, a term used in Section 30(1) of the Arbitration and Conciliation Act, but which is not defined in the Act. The Supreme Court had, in a judgment delivered in 19932 under the previous legislation, set out a list of incidences that would amount to misconduct, as a ground for setting aside awards, which was taken verbatim from the list set out in the fourth edition of Halsbury's Laws of England.3 The Lagos State Arbitration Law does not use the term 'misconduct', instead listing instances where a court may set aside an award. It appears from the cases, some of which are considered below, that the courts are slowly moving towards non-interference with arbitral awards when they are brought before them.

In Statoil Nigeria Limited v. Stardeep Water Petroleum Limited and Others,4 the Federal High Court declined to set aside an award in circumstances that would have come within the definition of misconduct adopted in the Taylor Woodrow case, on the ground that the party seeking to set aside the award, having allowed the offending issue to be raised before the arbitrator, could not thereafter call into question the authority of the arbitrator to entertain the issue, and relying upon a decision of the UK House of Lords in Macaura v. Northern Assurance Co Ltd.5

In Globe Spinning Mills Nigeria v. Reliance Textile Industries,6 the Court of Appeal was called upon to consider whether an arbitral tribunal had misconducted itself in failing to consider the effect of some exhibits in reaching its final decision. The appellants were seeking to reverse the decision of the High Court setting aside the award, on the ground that the tribunal, in not considering the exhibits, had misconducted itself. The court applied the rule laid down in the Taylor Woodrow case, and came to the conclusion that the tribunal did in fact consider those exhibits, and had not misconducted itself.

III OUTLOOK AND CONCLUSIONS

In a decision delivered in December 2015, but not reported until June 2016,7 the Court of Appeal restrained claimants in an ICC arbitration from continuing with the arbitration during the pendency of an appeal lodged by the claimants against a decision of the High Court refusing to stay an action in respect of an arbitration on a contract governed by foreign law. That decision came before those reported above, which appear to demonstrate a move towards the non-intervention by Nigerian courts with arbitral proceedings. An appeal has been lodged against that decision, and the view of the Supreme Court is awaited with great interest.

The arbitration community in Nigeria, comprising the numerous arbitration institutions and organisations, submitted a Bill to the National Assembly, seeking the repeal and re-enactment of the Arbitration and Conciliation Act. The Bill was passed by the Senate on 1 February 2018, and passed its second reading in the House of Representatives on 12 April 2018. The Bill aims to address issues identified as problematic in the present legislation, as well as those resulting from judicial decisions.


Footnotes

1 Babajide Ogundipe is one of the founding partners, Lateef Omoyemi Akangbe is a partner and Benita David-Akoro is an associate at Sofunde, Osakwe, Ogundipe & Belgore.

2 Taylor Woodrow Nig Ltd v. S. E GMBH 1993 4 NWLR pt 285 SC 127.

3 Halsbury's Laws of England, fourth edition, vol. 2, para. 622.

4 Unreported, Suit number:FHC/L/CS/100/2016.

5 (1925) AC 619.

6 (2017) LPELR-41433(CA).

7 Shell Petroleum Dev't Co. of Nig. Ltd. & Ors v. Crestar [2016] 9 NWLR (Pt. 1517) 300.