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Introduction
Arbitration has, in recent years, evolved from being a niche dispute resolution mechanism into a mainstream alternative to litigation. Commercial actors across several sectors now prefer to adopt arbitration as the preferred mode of resolving disputes arising from their commercial contracts chiefly because of its perceived speed and efficiency1. However, there is a fact that parties to an arbitration agreement often overlook, which is, an arbitral award does not enforce itself.
The enforcement of arbitral awards requires the backing of the courts for the same to be effective. The winning party must still take active steps to give that decision practical effect. In Nigeria, those steps involve (i) applying to a court for its recognition and enforcement, or, where the aggrieved party mounts a challenge, and then (ii) applying to set the arbitral award aside2. The recognition and enforcement of an arbitral award is the last limb in the dispute resolution process3 (after the delivery of an arbitral award), and it is at this stage that challenges frequently arise.
The Arbitration and Mediation Act, 2023 (the “AMA 2023” or the “Act”) has provided limited grounds upon which an arbitral award can be challenged. These grounds, include, among others4 lack of proper notice of the arbitral proceedings, inability of a party to present its case, the tribunal exceeding the scope of its authority, and irregularities in the composition of the arbitral tribunal or the arbitral procedure. Among the statutory grounds for challenging the recognition and enforcement of an arbitral award or applying to set aside an arbitral award, the most commonly invoked is that the arbitral award is contrary to public policy5.
In Nigeria and as in most jurisdictions, a court may set aside an arbitral award if it finds that the arbitral award conflicts with Nigerian public policy6. The same ground may be raised to resist the recognition or enforcement of a foreign arbitral award7. Interestingly, the AMA 2023 did not define what constitutes “public policy”. The concept is treated there as self-evident, though judicial commentary has repeatedly described it as an “unruly horse,” capable of leading courts in unpredictable directions8.
Against this backdrop, this article examines the concept of public policy in arbitration under the AMA 2023 and seeks to give the concept some workable content in the context of arbitral award enforcement in Nigeria, taking cues from jurisdictions such as England and Singapore. It reviews the principles that have emerged from judicial decisions, examines what the courts have accepted as violations of public policy and what they have rejected under that label, and considers the particular problem of the policy of a given, limited-time, administration or ruling political party being dressed up as public policy. It closes with a critique of the current doctrine and proposes a demanding, principled framework to guide the application of the public policy exception with greater consistency and rigour.
Public Policy under the Arbitration and Mediation Act 2023
The AMA 2023 is the governing arbitral legislation in Nigeria, and its architecture on the question of enforcement is largely aligned with the United Nations Commission on International Trade Law Model Law (the “UNCITRAL Model Law”) and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, to which Nigeria is a signatory.
The AMA 2023 provides that while parties are free to decide the manner in which their disputes are to be resolved, they must do so in a way that promotes peaceful co-existence and protects the public interest9. Also, the AMA 2023 makes it clear that an arbitral award, regardless of the country in which it was made, shall be recognized as binding and shall be enforced by the court on a written application. However, the AMA 2023 qualifies the power of the court to recognize and enforce an arbitral award to the extent that it complies with “public policy”.
A court of law in Nigeria can refuse the recognition and enforcement of an arbitral award if it finds that the recognition and enforcement of the arbitral award would be contrary to the public policy of Nigeria. This extends to foreign arbitral awards. To this end, one of the grounds to challenge the recognition and enforcement of an arbitral award or to seek the setting aside of an arbitral award is that such an arbitral award is contrary to public policy.
However, what is conspicuously absent from AMA 2023 provisions on public policy is the definition of “public policy”. The AMA 2023, following the UNCITRAL Model Law, deliberately leaves this undefined. The consequence is that the concept must be given content through judicial decision-making, and it is to the courts that we must look for guidance on what has, and what has not, been recognized as a violation of public policy sufficient to justify refusing enforcement or setting aside an arbitral award.
Meanwhile, before considering case laws, it is important to note that public policy is not necessarily a fixed concept with a uniform meaning across all areas of law. Its interpretation may vary depending on the legal context. Accordingly, the meaning of public policy in arbitration should not automatically be assumed to be identical to its meaning in other contexts, nor should authorities decided outside of arbitration context be treated as determinative of the concept under the AMA 2023.
This point can be illustrated by the Supreme Court's decision in Sonnar Ltd. v. Nordwind10. While Sonnar is widely cited as a leading authority on public policy, it did not arise in an arbitration context. The public policy considerations at play there – denial of access to court justice on time-bar grounds - were therefore materially different from those that arise in applications to recognise, enforce or set aside arbitral awards.
The context in which public policy is invoked also matters as the standard applicable to setting aside an arbitral award may not necessarily be the same as that applicable to refusing recognition and enforcement. Where an award is made in Nigeria, the Nigerian court, as the court of the seat, exercises supervisory jurisdiction over the arbitration and may therefore apply the broader conception of public policy recognised under Nigerian law. The position is different where a party seeks to enforce a foreign award in Nigeria. In that instance, the court is only called on to determine whether the award should be recognised and enforced in Nigeria. Consistent with the pro-enforcement policy of the New York Convention, the public policy exception should therefore be applied narrowly and reserved for cases in which enforcement would violate the most fundamental principles of Nigerian law11.
Public Policy through the Lens of the Nigerian Judiciary
Nigerian courts have consistently acknowledged that public policy is difficult to define with precision and have applied the concept in functional terms. To this end, any idea(s) or ideal which prevails in a community as to the conditions necessary to ensure its welfare will conform with public policy. Conversely, anything generally regarded as injurious to the public interest is treated as contrary to public policy12.
At its core, a matter touches public policy when it concerns an interest so fundamental to the orderly functioning of society that the state cannot countenance its violation, even if both parties to the arbitration were perfectly happy with the outcome. This is why criminal matters, for instance, are generally not arbitrable in Nigeria, not simply because they are not private disputes, but because the public has an interest in how those matters are resolved and that cannot be subordinated to the preferences of individual parties13.
The Nigerian courts have, over time, identified certain categories of matters as touching public policy. The first, and most clearly established category is fraud and corruption in the procurement of a contract or in the conduct of the arbitration itself. An arbitral award obtained through a corrupt process cannot be given legal effect without the court becoming an instrument of that fraud or corruption14.
The international dimension of this principle was well-illustrated in the landmark English case of The Federal Republic of Nigeria v. Process & Industrial Developments Ltd.15, where the English High Court set aside a USD11billion arbitral award on the grounds that it had been obtained by fraud, finding that the Defendants had bribed a Nigerian official both at the time of contracting and during the course of the arbitration, submitted false evidence to the tribunal, and unlawfully retained over forty privileged internal legal documents belonging to Nigeria. The arbitral award was accordingly set aside as having been obtained by fraud in a manner contrary to public policy16.
The second recognized category is statutory illegality. Nigerian courts have consistently held that contracts entered into in contravention of mandatory statutory provisions are illegal and unenforceable17. An arbitral award that gives effect to such a contract equally risks offending public policy because it would require the court to lend its authority to a transaction that the legislature has prohibited. This principle reflects the broader rule that arbitration cannot be used to validate or enforce an illegal transaction.18
The third category involves the protection of foundational constitutional rights. For instance, Nigerian courts have constantly held contracts that purport to restrict access to the courts as contrary to public policy, thus unenforceable. An arbitral award that purports to strip a party of a constitutional right (i.e. fair hearing) would fall into the same category19. The courts will not enforce it.
What runs through all these categories is the idea that the offence is not merely to the parties’ private interests but to values that the state, and society at large, have a compelling interest in upholding.
Footnotes
1 The 2025 Queen Mary University of London/White & Case International Arbitration Survey found that 87% of respondents preferred international arbitration, either alone (39%) or in conjunction with ADR (48%). The survey was based on 2,402 questionnaire responses and 117 interviews. https://www.qmul.ac.uk/arbitration/research/2025-international-arbitration-survey/ accessed 14 May, 2026
2 Olashupo Shashore, SAN and others, ‘Challenging and enforcing arbitration awards: Nigeria’ (2024) Global Arbitration Review https://globalarbitrationreview.com/insight/know-how/challenging-and-enforcing-arbitration-awards/report/nigeria accessed 14 May 2026.
3 See A.G. Bayelsa State v. Odok (2024) LPELR-63035 (SC).
4 AMA 2023, s. 55(3).
5 Uchenna Ponfa Emelonye and Uchenna Emelonye, ‘Public Policy Exception in the Enforcement of Arbitral Awards in Nigeria’ (2021) 12(1) Beijing Law Review 266.
6 AMA 2023, s. 55(3)(b)(ii).
7 AMA 2023, s.58(2)(b)(ii).
8 In the famous words of Burrough J in the English case of Richardson v. Mellish (1824) 2 Bing. 229, “it is a very unruly horse, and when you get astride, you never know where it will carry you.” That caution has been echoed by the Nigerian Supreme Court; See also Sonnar Ltd. v. Nordwind (1987) 4 NWLR (Pt. 66) 520, per Eso JSC, cautioning that basing decisions predominantly on public policy risks becoming “another means of avoiding the rules, law and procedure which govern a matter.” Both Richardson and Sonnar are general seminal cases on public policy; they are not arbitration cases
9 See Mainstreet Bank Capital Ltd. v. Nig. RE (2018) 14 NWLR (Pt. 1640) 423, 444, where the Court of Appeal affirmed that parties to an arbitration agreement are free to choose how the arbitration is conducted, including the governing law, provided that the agreed procedure and law are not against public policy, and that courts must respect and give effect to the parties’ agreement rather than rewrite it.
10 (1987) 4 NWLR (Pt. 66) 520.
11 For instance, in NNPC v. Lutin Investment Ltd (2006) 2 NWLR (Pt. 965) 506, the Nigerian Supreme Court rejected a public policy objection to an arbitrator’s decision to take evidence in London holding that the objector did not establish how taking evidence in London would offend public policy.
12 In Okonkwo v. Okagbue (1994) 9 NWLR (Pt. 368) 301, 335–336, the Supreme Court held that public policy comprises the ideas which for the time being prevail in a community as to the conditions necessary to ensure its welfare, such that anything generally regarded as injurious to the public interest is treated as contrary to public policy, and that public policy is not fixed but fluctuates with the circumstances of the time. See also Alagbaoso v. INEC (2023) 8 NWLR (Pt. 1885) 115; Total (Nig.) Plc v. Ajayi (2004) 3 NWLR (Pt. 860) 270, 293–294.
13 See UBA Plc v. Triedent Consulting Ltd. (2023) 14 NWLR (Pt. 1903) 95, where the Court of Appeal held that criminal matters or disputes where fraud is alleged are, as a matter of public policy, not to be settled privately by arbitration.
14 See Edet v. Chagoon (2008) 2 NWLR (Pt. 1070) 85, 108, the Court held that public policy must operate within the milieu of the law, justifying, reinforcing, clarifying and expounding its provisions; and that public policy to be enforceable must follow the dictates of the law.
15 [2023] EWHC 2638 (Comm).
16 Arbitration Act 1996, s. 68(2)(g).
17 See Fasel Services Ltd et al. v. NPA et al. (2009) LPELR-1245(SC).
18 See Limak Yatirim Enerji Uretim Hizmetleri ve Insaat AS et al. v. Sahelian Energy & Integrated Services Ltd. (2021) LPELR-58182 (CA), where the Court of Appeal upheld the refusal of enforcement, and setting aside, of an ICC award on the ground that the underlying agreement contravened the mandatory registration requirements of the NOTAP Act and was therefore contrary to Nigerian public policy. The objection succeeded precisely because it was anchored in a breach of mandatory statute rather than in mere dissatisfaction with the award.
19 AMA 2023, s. 58(2)(a)(iii); See also Ecobank Nig. Ltd v Admiral Environmental Care Ltd. et al. (2021) LPELR-56130 (CA) where the Court of Appeal affirmed that a breach of constitutional right to fair hearing (failure to notify a party against whom an award is sought of the notice of appointment of arbitrator or the arbitral proceedings) will entitle a Court to refuse recognition and enforcement of such award.
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