How To Secure Interim Relief In Nigerian Arbitration Proceedings

Introduction

Interim measures are essential in arbitration because they protect parties’ rights, preserve assets and evidence, and ensure that the arbitral process remains effective pending the final determination of disputes. The AMA strengthens this area of Nigerian arbitration law by empowering both courts and arbitral tribunals to grant interim relief, while also providing clear procedures for the recognition and enforcement of such measures.

By adopting principles consistent with the UNCITRAL Model Law, the AMA enhances Nigeria’s attractiveness as a seat for international arbitration and demonstrates the legislature’s commitment to a modern, efficient, and commercially responsive dispute resolution system. This article examines the framework for interim measures under the AMA, including the powers of courts and tribunals, the conditions for granting relief, and the enforcement mechanisms introduced by the Act.

I. The Court’s Power to Grant Interim Measures

Nigerian courts are empowered to issue protective interim measures in relation to arbitration proceedings regardless of whether the arbitration is seated in Nigeria or in another country.¹

They are granted concurrent jurisdiction alongside arbitral tribunals when it comes to granting protective relief. This dual-track system whereby both courts and tribunals can issue interim measures is consistent with the UNCITRAL Model Law on International Commercial Arbitration.² Critically, the AMA imposes a 15-day deadline within which a court must determine an application for interim measures.

Procedural Framework

Applications for interim measures under Section 19 are governed by the Arbitration Proceeding Rules contained in the Third Schedule to the AMA, which provides a structured and detailed procedure for the case management of such applications.

II. The Arbitral Tribunal’s power to Grant grant Interim Measures

The AMA defines what constitutes an interim measure and sets out the substantive conditions that must be satisfied before an arbitral tribunal can grant one.³ Under the AMA, an interim measure covers a broad range of protective orders, including measures to:

1. Maintain or restore the status quo pending determination of the dispute;
2. Prevent imminent harm or prejudice to the arbitral process;
3. Preserve assets from which a subsequent award may be satisfied; and
4. Preserve evidence that may be material to the resolution of the dispute.

Conditions for Grant of Interim Measures by an Arbitral Tribunal

Section 20, read together with Section 21, establishes the conditions that a party requesting an interim measure must satisfy before the arbitral tribunal will act. These are:

1. Risk of irreparable harm: The applicant must demonstrate that there is a credible risk of harm for which an award of damages would not provide adequate reparation if the interim measure is not granted.
2. Balance of convenience/harm: The harm likely to result from the measure being refused must substantially outweigh the harm that would be caused to the opposing party if the measure is granted.
3. Reasonable possibility of success on the merits: The applicant must show a reasonable possibility that their claim on the merits will succeed. Critically, the AMA expressly provides that any such determination by the tribunal shall not prejudice the tribunal’s future assessment of the substantive case.⁴

These conditions align closely with international standards, particularly the UNCITRAL Model Law, and mirror the criteria applied in sophisticated arbitral jurisdictions such as Singapore, England, and Hong Kong.

III. Recognition and Enforcement of Interim Measures issued by an Arbitral Tribunal

The AMA mandates Nigerian courts to recognise and enforce interim measures issued by an arbitral tribunal, irrespective of the country in which the arbitral proceedings are being conducted.⁵ This extraterritorial reach is particularly significant for international arbitrations involving Nigerian parties or Nigerian assets.

Importantly, the AMA explicitly prohibits courts from conducting a substantive review of the merits of an interim measure when deciding whether to enforce it. The court’s role at the enforcement stage is therefore limited and deferential to the tribunal’s decision.

IV. Grounds for Refusing Recognition or Enforcement of an Interim Measure

While AMA establishes a strong pro-enforcement presumption, the AMA (specifically Section 29) provides limited grounds on which a court may refuse recognition or enforcement. These include:

1. Non-compliance with the tribunal’s condition for security as a prerequisite for the grant of the measure;
2. Suspension or termination of the interim measure by the tribunal;
3. The party against whom enforcement is sought lacked the capacity to enter into the arbitration agreement;
4. The subject matter of the dispute is not arbitrable under Nigerian law; or
5. Enforcement would be contrary to Nigerian public policy.

This narrow list of grounds for refusal mirrors the approach taken in respect of final arbitral awards and is consistent with the pro-arbitration spirit of the AMA.

V. Significance and Broader Impact of AMA provisions on Interim Measure

1. Alignment with International Best Practices: Sections 19, 20, and 21 collectively bring Nigeria’s arbitration framework into alignment with the 2006 amendments to the UNCITRAL Model Law, which Nigeria has now substantially adopted. These provisions closely mirror Articles 17, 17A, 17H, and 17I of the UNCITRAL Model Law, which set the international gold standard for interim measures in arbitration.

2. Nigeria as an Arbitration Hub: One of the stated objectives of the AMA is to position Nigeria as a preferred seat for international arbitration in Africa. The reforms introduced by Sections 19, 20, and 21 are central to achieving that objective. The AMA has made Nigeria a significantly more attractive arbitral seat for cross-border commercial disputes.

3. Potential for Abuse and Judicial Oversight: While the innovations of these sections are broadly welcome, there is a risk that interim measures particularly asset-preservation orders could be weaponised by mischievous applicants to harass opposing parties or delay arbitral proceedings.

Conclusion

Sections 19, 20, and 21 of the Arbitration and Mediation Act 2023 collectively represent one of the most significant innovations in Nigeria’s arbitration law in recent memory.

Together, these provisions transform interim relief from an uncertain and underutilised remedy into a reliable and enforceable mechanism that serves the interests of parties in Nigerian arbitration. They reflect the legislature’s commitment to a modern, commercially responsive, and internationally competitive dispute resolution framework one that is well-suited to Nigeria’s ambitions as Africa’s foremost arbitration destination.

Footnotes

1. Section 19 of the Arbitration and Mediation Act 2023

2. Article 17 of UNCITRAL Model Law on International Commercial Arbitration

3. Section 20 of Arbitration and Mediation Act 2023

4. Section 21 of Arbitration and Mediation Act 2023

5. Section 28 of Arbitration and Mediation Act 2023

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.