Adesokan & Ajayi LP
2 Experts
4 Contributions by Adesokan & Ajayi LP Experts
PRACTICE NOTES
Choosing arbitration as the forum for resolving disputes has continued to gain broad traction in Nigeria. Nevertheless, parties bound by arbitration clauses frequently begin court proceedings to contest the authority of arbitral tribunals to determine their matters.
Challenging arbitral jurisdiction
Until 26 May 2023, the principal statute governing arbitration in Nigeria was the Arbitration and Conciliation Act, 1988, Cap A18, Laws of the Federation of Nigeria, Vol. 2010 (“ACA”), which was predominantly modelled on the UNCITRAL Model Law with some variations. The ACA expressly recognised the sanctity of the arbitration agreement (see section 2) and treated such agreements as generally irrevocable. That enactment has since been repealed and replaced by the new Arbitration and Mediation Act 2023 (“AMA”). The AMA preserves the default position of irrevocability. This mirrors the ACA’s stance. Under section 3, subject to section 5(1) and unless the parties agree
Arbitration
PRACTICE NOTES
Introduction
On 26 May 2023, the Arbitration and Mediation Act, 2023 (AMA) took effect, repealing the Arbitration and Conciliation Act, 1998 (ACA). The AMA fills several gaps left by the ACA and settles a number of contentious Nigerian court decisions on arbitration. This Practice Note also points to the key changes introduced by the new legislation.
Status of arbitral awards
Under Nigerian law, an arbitral award is final and binding. Section 31 of the ACA confirmed this under the previous framework, and section 57(1) of the AMA restates it, expressly recognising that both domestic and foreign awards bind the parties. It provides that an arbitral award, regardless of the country or state where it is made, shall be recognised as binding and, upon a written application to the Court, shall be enforced by the Court.
The form and contents of arbitral awards (section 47 of the AMA and
Arbitration
PRACTICE NOTES
Introduction
Interim remedies supporting arbitration are easily accessible to participants in Nigerian arbitral matters, either as (i) measures granted by the arbitral tribunal, or (ii) measures issued by the Nigerian courts. The entitlement to seek interim relief has been preserved—and widened—by the new Arbitration and Mediation Act, 2023 (AMA).
Interim reliefs in pre-2023 arbitral proceedings
Under the earlier regime, the Arbitration and Conciliation Act 1998 (ACA) authorised an arbitral tribunal to order interim measures of protection (Section 13 ACA). Article 26 Rules (1) and (2) of the Arbitration Rules, in the First Schedule to the ACA, likewise enabled the tribunal to grant protective measures, including ‘measures for the conservation of the goods forming the subject-matter of the dispute’, by way of an interim award. Although the ACA did not expressly vest the courts with power to grant interim orders such as injunctions pending
Arbitration
PRACTICE NOTES
State immunity under Nigerian Law
Nigerian statutes contain no blanket protection insulating the state from being sued, and they likewise do not establish a bar preventing the federation, the states, or foreign governments from asserting immunity within Nigeria. Even so, targeted laws exist that shelter specified state assets from execution to satisfy court judgments or arbitral awards.
When considering claims of immunity by foreign state bodies, Nigerian courts have generally applied a restrictive reading. Although diplomatic immunity for foreign governments and their officials is acknowledged under the Constitution and the Diplomatic Immunities and Privileges Act 2010, foreign states can still be proceeded against in Nigerian courts in defined circumstances.
In African Re-insurance Corporation v Fantaye (1986) LPELR – 214 (SC) (not reported by LexisNexis®), the Supreme Court remarked that the common law position of the English courts treated foreign sovereigns as immune from
Arbitration
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