In May of last year, the
Criticisms of the 1988 Act
A particular point of criticism has been the lack of provisions for interim relief in support of an arbitration, as under the 1988 Act, only an arbitral tribunal may grant interim relief, and this is only in respect of a pending arbitration. 2 This lacuna has occasionally caused issues for parties seeking injunctive relief before the Nigerian courts, as illustrated in the case of NV Scheep v MV S Araz (2000)3, where the
The 1988 Act has also been criticised for the lack of guidance it contains on emergency arbitrators and the enforceability of emergency arbitrators' orders being entirely silent on the point. In relation to absent definitive guidance, it has been suggested that the enforceability of the orders of an emergency adjudicator remained in doubt, raising questions concerning the compatibility of this aspect of the Arbitration Act with the
Furthermore, the 1988 Act has attracted criticism by way of its lack of provisions dealing with limitation. This issue became apparent by way of the case of
Many of the above are common criticisms of the older arbitration laws on the continent, which are now undergoing reform. Prior to reform in 2021, the applicable arbitration provisions in
In contrast, the position in respect of the
Have the criticisms been addressed?
These points, among others, have been addressed in the newly passed 2022 Bill; for example:
-
The new provisions now mirror those of the UNCITRAL Model Law on International Commercial Arbitration as updated in 2006.12 This change broadens the Tribunal's powers to permit it to issue interim relief throughout the proceedings.
- The courts are now also able to avail of powers to grant interim measures protection, provided the seat of the arbitral proceedings is in
Nigeria .13 - The 2022 Bill addresses the uncertainty surrounding emergency arbitrators with provisions establishing the right of a party to apply for or challenge the appointment of an emergency arbitrator and the procedure for doing so (setting a target of two business days following receipt of the application).14 It also establishes procedures for challenging the appointment of an emergency arbitrator and determining the seat of the emergency arbitration.
- The 2022 Bill retains the applicability of the existing Limitation Acts while, crucially, providing that, where proceedings to enforce or challenge an arbitral award are brought, the calculation of the limitation period is to exclude the dates between the date of commencement and the date of the award.15
- The 2022 Bill has also removed misconduct of the arbitrator as grounds for challenging an arbitral award.
- Improved interim measures;
- A decreased scope to challenge said jurisdiction; and
- A reduction in the national courts' ability to hear challenges to or refuse to enforce arbitral awards.
- 1. Mediation and Conciliation Bill 2022
- 2. Is the Nigerian Arbitration and Conciliation Act suitable to construction disputes? A critical analysis
- 3. Messrs. N. v Scheep & Anor v the M. V. "Araz" & Anor (SC 167 of 1996) [2000] NGSC 3 (
08 December 2000 ) - 4. See footnote 2
- 5.
City Engineering Nigeria Ltd vFederal Housing Authority [1997] NGSC 1 - 6. Enforcement of Arbitral Award in
Nigeria - The Time Factor - 7. A review of recent efforts to modernise commercial arbitration practice in
Africa - 8. Ibid.
- 9. World Arbitration Update: Legal Developments in Sub-Saharan Africa -
Africa's Blooming - 10. Contacting states
- 11. Ibid.
- 12. Mediation and Conciliation Bill 2022, ss 19 et seq
- 13. Mediation and Conciliation Bill 2022, s 19
- 14. Mediation and Conciliation Bill 2022, ss 16
- 15. Mediation and Conciliation Bill 2022, ss 34
- 16. The Arbitration Act 2022 (
Sierra Leone ), ss 79-80 - 17. Mediation and Conciliation Bill 2022, s 56
- 18. Arbitration Act, 2022 (Act 18 of 2022)
- 19. Sierra Leone Arbitration Bill 2022 passed
- 20. SOAS Arbitration in
Africa 2022 Survey Report - 21. 2020 Arbitration in Africa Survey Report
These changes go to significant lengths to address the criticisms previously levied at arbitration process under the 1988 Act. Parties should feel more secure in the knowledge that the courts of
Innovative provisions
Third-party funding
The 2022 Bill also appears to increase the attractiveness of
Award Review Tribunals
A novel provision of the Bill is the introduction of the option for parties to agree to have challenges to the award heard by an
Arbitration and reform on the continent of
The reforms taking place in
-
An increase in deference to the jurisdiction of the arbitral tribunal;
Where required, significant steps have been taken to fully embed the
This may be due in part to the increase in arbitrations taking place across
Comment
The appetite for international arbitration in
The 2022 Bill represents a crucial step forward in this regard in eliminating provisions that have historically underpinned core criticisms of and influenced preconceptions (rightly or wrongly) about
International Quarterly is produced quartely by
Footnotes
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr Ben Smith
71-91
WC2B 4HN
E-mail: jglover@fenwickelliott.com
URL: www.fenwickelliott.com
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