Introduction
"This book presents a broad procedure for dispute resolution through Arbitration. It gives a distilled analysis to statutory and case law positions regarding Arbitral Proceedings with greater emphasis on relevant International Conventions. It further provides good insight into the preliminary and major issues being encountered in Arbitral Proceedings in Nigeria by Legal and Arbitration practitioners … with this book, no excuse could any longer be proffered for seeking foreign authors in the field of Arbitration in Nigeria."HON JUSTICE KAYODE ESO, CON, LTD, LITT. DFormerly Justice Supreme Court of Nigeria. Formerly President Chartered Institution of Arbitrators (Nigeria),Chancellor Ladoke Akintola University of Technology, Ogbomoso.
Preface
The concept of a free-market economy presents opportunities for disputes in the pursuit of economic gains. In seeking the determination of their rights and liabilities, or the amicable settlement of their disputes, parties can have recourse to the court system or to alternative dispute resolution (ADR) methods. Although ADR includes other methods and mechanisms such as mediation, conciliation, and negotiated settlement, arbitration has however become the main alternative to resolving or determining commercial disputes. Generally speaking, ADR has gained widespread acceptance in trade and commercial disputes, to the extent that in some jurisdictions, the Court Civil Procedure Rules now require some parties to resort to some type of ADR, usually in the form of mediation, before permitting the parties' cases to be tried.
In this edition of the book I have tried to lay out the framework for arbitration and conciliation, the agreement to arbitration and the practice and procedure of commercial arbitration. In so doing I have tried to bring to the fore the practical situations and issues that parties, counsel, arbitrators and all that are involved in this system of dispute resolution face. It is therefore intended to be a practice handbook. The jurisprudence and recent case law discussed in the book provided the basis of academic rescarch, and form a practical resource in the field of commercial arbitration in Nigeria. The principles underlying the law and practice of arbitration are applicable not only to Nigeria, but to a number of Common Law countries, including signatories to the New York Convention.
I have tried to present the law and practice as they exist today. In fifteen chapters, I have attempted to look at the general principles and Iegal framework of arbitration, including the law and procedure applicable to arbitration. The nature of the arbitration agreement is examined, with emphasis on the essential elements of an arbitration clause, common defects in arbitration clauses, jurisdictional and enforcement issues. Forum of arbitration, capacity to arbitrate, place and language of arbitration are also discussed. The practical aspects of commencement of arbitration, as well as difficulties with commencement are discussed in chapter four.
The constant challenge of forum of dispute resolution (litigation or arbitration) is treated in Chapter six dealing with “stay of proceedings.” The discusions cover resources to court for preservative orders, as well as case law on when a party is deemed to have taken a step in the proceedings. The later chapters deal with arbitration proceedings and preliminary issues such as admissibility of evidence, adherence to rules of evidence, methods of presenting evidence l, and the standard as well as the burden of proof in arbitration. Arbitration proceedings and Award are treated in chapters eight and nine respectively. I have attempted to deal with the pressing issues of enforcement of awards and the challenge of arbitral awards. A new chapter focuses on the challenge and enforcement of maritime arbitral awards.
Another chapter is dedicated to mediation and conciliation and another, to the techniques for settling of disputes. With the benefit of practice experience, and feedback from teaching at the professional training programmes for arbitrators I have included templates and precedents that should be of practical value to the practitioner, and a case study to form the basis for moot proceedings. All of these have brought depth and meaning into this book on the law and practice of commercial arbitration in Nigeria. This book lays no claims to perfection, and I therefore take full responsibility for any errors of omission or commission that may be found herein. Fabian Ajogwu, SAN, FCIArbLagos. January 14, 2013
Foreword
It is a pleasure to be asked to write the foreword to the second edition of this very important practice book on arbitration. Its importance and uscfulness lie in the way in which Fabian Ajogwu, SAN presents the practice of commercial arbitration in Nigeria as well the international practice. He has carefully selected his case law and conducted his research, to present a comprehensive piece on the law and practice of commercial arbitration in Nigeria. The subject of commercial arbitration has gained so much awareness and acceptance that arbitration clauses seem to have become a permanent feature of most commercial documents in Nigeria. The speedy and orderly disposition of disputes affecting commercial relationships is of the very essence of business itself.
Perhaps, the official recognition of alternative dispute resolution procedures by the establishment of the Lagos Court of Arbitration, Lagos Multi-Door Courthouse, and the Abuja Multi-Door Courthouse, all of which have helped fuel the seriousness with which arbitration and other alternatives to litigation have been received in Nigeria since the turn of the millennium. Arbitration occupied most of my practice time in those days when I was in the legal profession. I practised international commercial arbitration in Nigcria and very extensively in many parts of the world and particularly at the International Chambers of Commerce in Paris as well as the Permanent Court of Arbitration in The Hague. I served not only as an Arbitrator but also as Counsel for parties in arbitration.
Most importantly, the arbitration and conciliation law that was promulgated during my tenure in office as Attorney-Gencral and Minister for Justice served as part of my contribution to law development during the 1980's. I find this book very useful as the practical guide to arbitration as well as the moot proceedings, and discussions on the challenge and enforcement of maritime arbitral awards. I also find it as a useful practitioners' and users' guide on the subject of arbitration and other alternative dispute resolution methods. The Learned Senior Advocate brings his practice experience to bear in this book, which I recommend as an authoritative text on the subject of commercial arbitration. JUDGE BOLA AJIBOLA, SAN, FCI.
Arb, CFRFormerly Judge of the World Court at The HagueFormerly President of the World Bank Administrative Tribunal Formerly Attorney General of the Federation & Minister of Justice, Abeokuta,Nigeria. September 30, 2012
