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 meditation, 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 meditation, before permitting the parties' cases to be tried.
In this 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 practice handbook. The jurisprudence and recent case law discussed in the book provided the basis of academic research, and form a practical in the field of commercial arbitration in Nigeria. The principles underlying the law and practice of arbitration are applicable not only to Nigerian, 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 fourteen chapters, I have attempted to look at the general principles and legal 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 discussions cover recourse 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 deals with arbitration proceedings and preliminary issues such as admissibility of evidence, adherence to rules of evidence, methods of presenting evidence, 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 challenge of arbitral awards. A 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, FCIArbLagosMarch 2, 2009
Foreword
Alternative dispute resolution of matters, especially, commercial cases, has become a permanent feature of the Nigerian legal system. However, this is one area in which there is a dearth of literature, notwithstanding the statutes and avalanche of case-law that pervade the scene. The ice had been broken by Orojo and Ajomo in their book, Law and Practice of Arbitration and Conciliation in Nigeria followed by Akpata in his work on arbitration. Now it seems, by the production of this well-written work on Commercial Arbitration in Nigeria: Law and Practice, no excuse could any longer be proffered for seeking foreign authors in the field of arbitration in Nigeria. Mr. Fabian Ajogwu has done a thorough job that would be of delight to practitioners in Arbitration, both as Tribunal or counsel.
He has left no stone untouched in achieving the aim of ADR, which he has rightly said, provides "The Mechanism for Dispute Resolution processes and techniques that fall outside of the judicial process, which is provided by the government." The author is right.
He is also right, when he pronounced on the rising popularity of ADR:"The rising popularity of ADR can be explained by the increasing number of cases being handled by the traditional courts and the attendant delays, the perception that ADR implies lower costs than litigation, a preference for confidentiality and the desire of some parties to have greater control over the selection of the individual or individuals who will settle their dispute on the basis of competence, experience and absence of bias."If only for these reasons and the fact of commercial convenience to corporations, thereby ADR would not disrupt the original contact inter se or with others outside their domain, corporations, lawyers and ADR practitioners should have easy access to definitive literature that would enhance the progress before Tribunals.
The case law is heavy and not easily accessible without help. And when comes a book of this depth, which could be relied upon in respect of search and research with the ultimate aim of achieving not only speed but unadulterated justice, justice is assured. For in ADR, as the parties agree to be bound by the decisions of the Tribunal, they should have confidence that the Tribunal is always posited to do justice. And for the Tribunal, the practitioners and the parties, there is necessity for the type of work that has been done by this author in his book. One interesting innovation is the chapter fourteen of this book which deals with Moot Proceedings. The author has shown that the book has no limitations. Teachers and students of arbitral procedures are supplied with a weapon of pursuit of excellence.
And thus, everyone, be he a student, party, counsel and tribunal, has a deep fountain to draw from. I feel highly honoured to have been called upon to write a foreword to this book. It is a book for the shelf of everyone of whatever discipline, who believes in actualizing speed, in the determination of cases, especially commercial cases. I congratulate the author. HON JUSTICE KAYODE ESO, CON, LTD, LITT. DFormerly Justice Supreme Court of Nigeria. Formerly President, Chartered Institution of Arbitrators (Nigeria),
