Comparative Guides
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Results: 4 Answers
International Arbitration
8.
The tribunal
8.1
How is the tribunal appointed?
 
Nigeria
The Arbitration and Conciliation Act (ACA) and the Lagos Arbitration Law provide for the default appointment of arbitrators. The general position is that the parties determine the procedure for the appointment of the arbitrators (Section 7(1)). However, where the parties have not agreed on a procedure for appointment, the ACA provides a default procedure under Section 7(2). Where the parties do not agree on the appointment of a sole arbitrator or the third arbitrator in a three-person tribunal, resort is to the court in domestic arbitrations. In international arbitrations, recourse is to the appointing authority: that is, the secretary general of the Permanent Court of Arbitration at The Hague. Section 8 of the Lagos Arbitration Law makes the Lagos Court of Arbitration the appointing authority where the parties fail to provide alternative default provisions.

Under both laws, the appointment is made according to the default provisions, on the application of any party to the arbitration agreement, if:

  • a party fails to appoint its arbitrator within 30 days of receipt of the request to do so by the other party; or
  • the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment.

In addition, where any of the parties, the arbitrators or the relevant institution fails to take any steps required of it, any party can apply to the court or the Lagos Court of Arbitration respectively to take the necessary action, unless the parties’ agreement provides for any other recourse (Section 7(3) of the ACA and Section 8(4) of the Lagos Arbitration Law).

For more information about this answer please contact: Babajide Ogundipe from Sofunde Osakwe Ogundipe & Belgore
8.2
Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
 
Nigeria
The ACA does not specify the number and qualifications of arbitrators, and parties are free to select their preferred arbitrators. In the absence of an agreement as to number, the default number of arbitrators is three for arbitrations to which the ACA applies and one for arbitrations conducted under the Lagos Arbitration Law.

Neither the ACA nor the Lagos Arbitration Law stipulates any qualification for appointment as an arbitrator, and under Section 44(10) of the ACA no one can be disqualified from appointment as arbitrator by reason of nationality.

For more information about this answer please contact: Babajide Ogundipe from Sofunde Osakwe Ogundipe & Belgore
8.3
Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?
 
Nigeria
Yes, the appointment of an arbitrator can be challenged, on the basis that the arbitrator:

  • has failed to disclose circumstances likely to give rise to any justifiable doubts as to his or her impartiality and independence; or
  • does not possess the qualifications agreed by the parties.

The parties are free to determine the procedure to be followed when challenging an arbitrator. Under the ACA, where a party intends to challenge the appointment of an arbitrator, it shall, within 15 days of receiving notification of such appointment, send a written statement to the tribunal giving its reasons. The written statement must be notified to the other party and to other members of the tribunal. The arbitrator must withdraw if the other party agrees to the challenge; even if the other party does not agree to the challenge, the arbitrator can still decide to withdraw. Unless the arbitrator decides to withdraw or the other party agrees to the challenge, the tribunal and, in the case of an international arbitration, the appointing authority shall decide on the challenge to the appointment.

For more information about this answer please contact: Babajide Ogundipe from Sofunde Osakwe Ogundipe & Belgore
8.4
If a challenge is successful, how is the arbitrator replaced?
 
Nigeria
Where a challenge is successful, the replacement arbitrator is appointed according to the same rules as applied to the appointment of his or her predecessor. Where an arbitrator dies or resigns in the course of the arbitration proceedings, fails to act or is unable to perform his or her functions, he or she can also be replaced.

For more information about this answer please contact: Babajide Ogundipe from Sofunde Osakwe Ogundipe & Belgore
8.5
What duties are imposed on arbitrators? Are these all imposed by legislation?
 
Nigeria
Generally, an arbitrator has the duty to decide disputes on the evidence before him or her, acting judicially and in accordance with the arbitration agreement and the law. The ACA also stipulates that an arbitrator has the duty to:

  • give the parties adequate notice of the date, place and time of hearings;
  • ensure that the parties are accorded equal treatment and are given full opportunity to present their cases (Section 14 of the ACA);
  • make disclosure relating to independence and impartiality (Section 8 of the ACA; Article 9 of the Arbitration Rules);
  • communicate expert reports to the parties (Section 20(4) of the ACA);
  • decide ex aequo et bono or as amiable compositeur only where authorised to do so by the parties (Section 22(3) of the ACA);
  • decide and dispose of all issues submitted to it by the parties;
  • give a reasoned and valid award, ensure that the award is enforceable; and
  • in the absence of provisions, conduct the proceedings in such a way as to ensure a fair hearing (Section 15 of the ACA).
For more information about this answer please contact: Babajide Ogundipe from Sofunde Osakwe Ogundipe & Belgore
8.6
What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?
 
Nigeria
(a) Procedure, including evidence?

The tribunal’s powers, as they relate to procedure, are derived from the arbitration agreement, the relevant legislation and the applicable procedural rules under the legislation. The tribunal has the power to:

  • rule on its own jurisdiction;
  • extend the timeframe for filing case statements, pleadings and written statements;
  • issue a consent award upon settlement or agreement of the parties; and
  • of its own volition, correct in the award any errors in computation, clerical or typographical errors or any errors of a similar nature, and terminate the arbitration proceedings.

With regard to evidence, the tribunal has the power to:

  • order the production of evidence;
  • administer oaths or take affirmations of parties and witnesses appearing before it;
  • determine the admissibility, relevance, materiality and weight of any evidence placed before it; and
  • admit relevant evidence such as statements, documents, other information, expert reports and evidentiary documents.

(b) Interim relief?

Under the ACA, the tribunal has the power to order any party to take such interim measures of protection as the tribunal may consider necessary in respect of the subject matter of the dispute and to require any party to provide appropriate security in connection with any measure taken (Section 13). There is no restriction on the types of interim relief which the tribunal can grant; however, in awarding interim relief, the tribunal should be careful to act within the scope of its jurisdiction as determined from the arbitration agreement and the applicable law. Although Section 13 of the ACA confers on the tribunal the power to grant interim relief without recourse to the court, it is doubtful whether the tribunal can enforce compliance with its interim orders, since it has no coercive powers.

The Lagos Arbitration Law contains more detailed provisions concerning the grant and enforcement of interim relief (Sections 21 to 30), which may be sought from either the High Court or the tribunal.

(c) Parties which do not comply with its orders?

Where a party fails or refuses to comply with the tribunal’s orders - for example, to produce documents - the tribunal cannot compel the party to do so, although it may make adverse inferences regarding the failure to comply, if appropriate.

(d) Issuing partial final awards?

Under Article 32 of the Arbitration Rules of the ACA, an arbitrator may make interim, interlocutory or partial awards. Under Article 33 of the Lagos Arbitration Law, the tribunal may make “separate awards on different issues at different times”.

(e) The remedies it can grant in a final award?

The ACA does not stipulate the types of remedies that a tribunal can grant. Based on common law, the tribunal has implied powers to grant the relief sought by a party if it could be granted by a high court. This includes declaratory relief, monetary awards, specific performance and the award of interest. The ACA also gives the tribunal the power to award costs.

In contrast, Section 38 of the Lagos Arbitration Law provides that the parties are free to agree on the remedies that may be granted by the tribunal and specifically empowers the tribunal to make declarations as to any matter to be determined in the proceedings, and to order the payment of sums of money in any currency. In addition, the tribunal is specifically granted the same power as a court to order:

  • a party to do or refrain from doing anything;
  • the specific performance of a contract (other than a contract relating to land); and
  • the rectification, setting aside or cancellation of a deed or other document.

(f) Interest?

The ACA contains no express provision empowering the tribunal to award interest. However, under the ACA, interest is usually awarded on principal claims at rates established by evidence of the party seeking the award of interest. The award of interest on costs is unusual, but there is no express prohibition against the award of interest on costs.

The Lagos Arbitration Law, by contrast, provides at Section 46 that arbitrators may award interest.

For more information about this answer please contact: Babajide Ogundipe from Sofunde Osakwe Ogundipe & Belgore
8.7
How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
 
Nigeria
The ACA stipulates how the tribunal should proceed if a party does not participate in the arbitration. Section 21 provides that:

  • where the claimant fails to state its claim, the tribunal shall terminate the proceedings;
  • where the respondent fails to state its defence, the tribunal may continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations; and
  • where any party fails to appear at a hearing or to produce documentary evidence, the tribunal may continue the proceedings and make an award.

Section 41 of the Lagos Arbitration Law contains similar provisions with regard to party defaults.

For more information about this answer please contact: Babajide Ogundipe from Sofunde Osakwe Ogundipe & Belgore
8.8
Are arbitrators immune from liability?
 
Nigeria
No provision in the ACA confers immunity on arbitrators. Section 18 of the Lagos Arbitration Law confers immunity on an arbitrator for anything done or omitted in the discharge of his or her functions as arbitrator, unless the act or omission is determined to have been in bad faith.

For more information about this answer please contact: Babajide Ogundipe from Sofunde Osakwe Ogundipe & Belgore