The Impact of the Judiciary in sub-Saharan Africa. To what extent do courts support or disrupt arbitration?

Table of Contents  Perspectives  Nigeria: A hub for International/Domestic Arbitration;  Intervention VERSUS Interference  Recognition and Enforcement  Attracting Investment  Conclusion

Nigeria’s Arbitral framework  Arbitration and Conciliation Act (Cap A18) LFN 2004: Based on the UNCITRAL Model Law. Applies to all commercial arbitrations and incorporates the New York Convention – Recognition & Enforcement of Awards  The Arbitration Rules: The ACA incorporates the UNCITRAL Rules (s53)  The Lagos Arbitration Law (No. 10) 2009: Also fashioned after UNICTRAL but with modifications. Applicable to all arbitrations in Lagos State; save where the parties have agreed otherwise.

Perspectives  Investors want speedy and effective dispute resolution mechanisms.  In commercial contracts Arbitration – has become the method of choice.  But what makes an investor prefer one jurisdiction over another? -A clear business framework – incentives/policies -Confidence in the country’s legal system -Maximum judicial support (for an arbitral process)/Minimal Intervention -A track record of enforcing – awards/agreements  How does Nigeria measure up?

Nigeria: A hub for Arbitration?  What is the prevailing view?  However, a holistic look at Nigeria’s approach to arbitration, reveals a pro-arbitration stance.  Such as: -A jurisprudence that aligns with international best practice. -Quick determination of recognition and enforcement applications; -Giving effect to the wishes of the parties; -An enhanced infrastructure – arbitral institutions. -Mandatory screening of originating processes; Order 3 r(11) Lagos High Court Civ Procedure Rules.

Intervention VERSUS Interference  Supervisory jurisdiction of the court  SS 34&35 Arbitartion & Conciliation Act CAP A18 LFN 2004  Arbitrability  Enforcement of Arbitral Awards

Supervisory jurisdiction of the courts  ‘…to prevent and redress any injustice on the part of the arbitrator’.  When a court might intervene…. - at commencement; - ‘in an arbitration’ – s34ACA; - post the award – ‘Recognition and Enforcement’.

ACA 34 & 35  Section 34 ACA: “A court shall not intervene in any matter governed by this Act, except where provided in this Act”.  For example, where a party seeks an anti-suit injunction; etc.  But what is the extent of the power donated by s34?  Placed against other sections of the Act - ss35 & 48:  S35: This Act shall not affect any other law by virtue of which certain disputes – (a) May not be submitted to arbitration; or (b) May be submitted to arbitration only in accordance with the provisions of that or other law.”

Still on ss34 & 35  A tax dispute for instance – not arbitrable.  Constitution of the Federal Republic of Nigeria 1999, reserves such disputes for the Federal High Court.  Federal Inland Revenue Service v Nigerian National Petroleum Corporation & 4 others. FHC/ABJ/CS/774/2011 (unreported).  An arbitral panel rendering an award disregarding the law is liable to have the same set aside.  A court intervening to state and uphold the law, deepens our arbitral jurisprudence; not undermine it.

Arbitrability:  Arbitrability: (i) validity of an agreement and, (ii) arbitrability of a dispute.  How do other countries approach this issue e.g. UK, US, India?  Kompetenz-Competenz – arbitrators determine their jurisdiction.  That said however,“[a] party who has not submitted to the arbitrator’s jurisdiction is entitled to a full judicial determination on evidence of an issue of jurisdiction….”.  In other words, some form of judicial review of the arbitrators jurisdictional decision.

Still on Arbitrability  Nigerian law is established in the same sense.  A tribunal can only decide matters submitted to it; and which may ‘lawfully’ be submitted.  Kompetenz-Kompetenz is grounded in the Nigerian process – s12 ACA  However, where arbitrabilty is in issue, it is for a court to give full judicial determination.  Crestar Integrated Natural Resources Limited (Unreported Suit No CA/L/331M/2015).

Enforcement - arbitration clauses/awards  An arbitral award is conclusive, final and binding; Estoppel per rem Judicata’  Nigeria is a signatory to the New York Convention. It has an obligation to recognise and enforce awards. s54ACA.  Where the agreement (to arbitrate) and award are valid, the courts will enforce – foreign or domestic.  s31 ACA sets down the procedure; (subject to s32ACA).  The application may be made ex-parte.

Enforcement…  A plethora of cases confirms Nigerian stance on enforcement. Baker Marine Nigeria Limited (2000); Onward Enterprises Ltd v. NV Matrix (2010). Tulip (Nigeria) Limited v Noleggioe Transport Maritime SAS – (a foreign award/local enforcement (2011)). Kano State Urban Development Board v Fanz Construction Co Ltd (1990)  The legal process for enforcement is very straightforward. S31 ACA

Attracting Investment  Much has been done to improve Nigeria’s arbitral framework.  New laws. The Lagos State Arbitration Law (No 8) 2009: - Applicable to all arbitrations in Lagos; unless parties agree otherwise). - Limitation’ issues - time runs from accrual of the cause of action; not the award. - The Lagos State Arbitration Law tackles this problem (s35(5)). - ‘‘…the period between commencement of the arbitration and the date of the award shall be excluded’’ in computing to enforce an award. - Not yet tested; but a court is likely to apply a literal interpretation.

…Cont’d  An increased number of reputable ADR centres – in Nigeria: - The Lagos State Court of Arbitration. - Regional Centre for International Commercial Arbitration. - Chartered Institute of Arbitrators (Nigeria Branch) - The International Centre for Arbitration & Mediation Abuja.  Also in Africa: - LCIA-MIAC (Mauritius) - Nairobi Centre for International Arbitration (Kenya) - Africa ADR (established 2007; Secretariat in South Africa)

Conclusion  Nigeria’s arbitral framework must develop further.  However a view that its judiciary is anti-arbitration does not hold up.  Nigeria is not short of qualified personnel/institutions, etc.  Overloaded court dockets is still an issue. A possible argument for specialised arbitration courts.  Government, In-house counsel, Practitioners, also have a role to play.  It is inaccurate to label Nigeria’s courts interventionist.

Thank you