On May 26, 2023, the Nigerian arbitration community felt profound relief when the former President Muhammadu Buhari passed the Arbitration and Mediation Act. This laudable event has marked a tremendous step in the 17-year struggle to revamp the laws governing alternative dispute resolution in Nigeria.
As laudable as the Act's potential passage is, the new provisions still leave some lacunae, which, if addressed, could propel Nigeria into the spotlight as a renowned seat for international arbitration. In this short piece, we will discuss two major issues plaguing arbitration in Nigeria: the delay in enforcing awards and the need for specialist judges to deal with applications concerning arbitral awards.
Recognition and enforcement of awards
A primary concern amongst arbitration practitioners and users of the arbitral process is the long-drawn-out process for recognising and enforcing awards. Several legal practitioners view arbitration as merely a step in the legal process towards challenging awards (regardless of whether valid grounds exist). The whole judicial process, from the High Court to appeals, to the Supreme Court, erodes the benefits of arbitration as a quick and effective means of resolving disputes. One way to solve this problem is to amend the Constitution to ensure that the Court of Appeal is the final court on appeals for the challenge of awards and the recognition and enforcement of awards. Section 243 (3) of the Constitution of the Federal Republic of Nigeria and Section 9 of the National Industrial Act have already set a precedent for such an approach. A combined reading of these sections shows that, apart from limited circumstances, the Court of Appeal is the final court for labour matters, and a party must obtain leave to even appeal to the Court of Appeal. Similar provisions can be inserted into the Constitution and the Arbitration and Mediation Act. This would reduce the time it takes to enforce an award since the Court of Appeal could reject frivolous applications for leave to appeal.
Provision of specific arbitration courts
The yearly Queen Mary survey on International Arbitration continues to reiterate that the country's judiciary is the prime reason for parties choosing a seat of arbitration. Mauritius, which is seen as a more arbitration-friendly seat in Africa, has a special group of judges at its Supreme Court to hear all applications on international arbitral awards. This author believes that the AMB can go further by ensuring an arbitration court in every state of the Federation and then designating some Court of Appeal justices as arbitration judges for all appeals, with the Court of Appeal being the final court in arbitration matters.
If these two changes are incorporated into the exquisitely laid out provisions of the Arbitration and Mediation Act, their passage into law will herald the dawn of a new era for practising alternative dispute resolution in Nigeria.
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