ENFORCEMENT OF ARBITRAL AWARDS - G.O. · Web viewThese arbitral awards, products of hours and...

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ENFORCEMENT OF ARBITRAL AWARDS

ENFORCEMENT OF ARBITRAL AWARDSIntroduction

It is obvious that disputants are now discovering that Arbitration is a more efficient, flexible and cost efficient alternative to litigation and in the very words of Lord Langdate, M.R, “Many cases occur, in which it is perfectly clear, that by means of a reference to arbitration, the real interests of the parties will be much better satisfied than they could be by any litigation. Arbitration is probably the oldest method of dispute resolution still in common use today. Arbitration as a process begins with an agreement, made either when a contract is made, or after a dispute has arisen, that certain matters which are or may be in contention between the parties will be resolved by submitting them to arbitration and not (at least in the first instance) to the courts, and that the parties will honour the valid award of the arbitrator in respect of matters referred to him in accordance with the arbitration agreement. Should a party fail to honour the award, the other party may seek relief from the courts. 1These arbitral awards, products of hours and sessions of arbitration are not usually a final bus stop to the dispute resolution process. The party in whose favour the award is made will be confined to a second and sometime a more stringent expectation that the other party will honour and satisfy the award. In most cases, these expectations are never met. Hence the following questions: what are the rights and obligations of parties after an arbitral award is issued. What protection does the law offer parties after an Arbitral Award has been made? How are Arbitral Awards enforced? The questions raised above shall direct our path in the discussion of this paper.

Recognition of Award

1 Frederick Adefarati and Cajetan Osisioma Article published in the Lagos Court of Arbitration’s Dispute Resolution Journal, Vol. 1 No. 1, November 2014 pp. 59-72.

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Every arbitral award duly made is to be recognized as binding and is expected to be complied with. It is when it is not complied with that the question of enforcement by the winning party arises2. Before an arbitral award can be enforced in Nigeria, it must first be recognized. Section 31 (1) of the Arbitration and Conciliation Act provides that, An arbitral award shall be recognized as binding and subject to the section 33 of this Act, shall upon application in writing to the court, be enforced by the court. The law did not specify any particular mode for the recognition and enforcement of an award, this has been left for the High Court Rules; as only the High Court has jurisdiction to entertain an application for the recognition and enforcement of arbitral awards3. The Supreme Court was called upon to decide on whether the Federal High Court has jurisdiction to entertain an arbitration matter in the case of Magbagbeola V Sanni4, the court held, relying on section 57 (1) of the Arbitration and Conciliation Act that the Federal High Court has jurisdiction to entertain Arbitration matters notwithstanding its exclusive jurisdiction5 As we noted above, the Arbitration and Conciliation Act did not make any provisions for the recognition and enforcement of the Arbitral Award, only the civil procedure Rules of the High Courts can make such rules and as the Court of Appeal stated in the case of Medical and Health Workers Union of Nigeria v Ministerial Labour and Productivity6 that:

The rules of court are to be obeyed, they were made to help thecause of justice and not to defeat justice … they are subsidiarylegislations but equally … possess the potent force of … principallegislation when validly made.7

2 Law and Practice of Arbitration and Conciliation in Nigeria by J.O. Orojo and M.A Ajomo ISBN 978- 34984- 0- 13 See section 57 (1) of Arbitration and Conciliation Act which defines High Court to include High Court of a State, the High Court of a Federal Capital Territory, Abuja or the Federal High Court.4 (2005) 11 NWLR (Pt. 936) 239.5 Section 207 of 1999 Constitution.6 (2005) 17. NWLR (Pt. 953) 90.7 Ibid 90 at 147 – 148.

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The rules thus have constitutional force and are the only reference point to determine the competence of the court, its jurisdiction and the proper procedure to adopt in the enforcement of an arbitral reward. Enforcement of Foreign Arbitral Awards in Nigeria.The essence and need for the enforcement of foreign arbitral awards in Nigeria can best be represented in the very words of an eminent scholar as follows: -

One reason business people enter into arbitration agreement or may insist on

inserting arbitration clause in contract is to hope for a binding and an enforceable

award should one be rendered. An arbitration agreement or award without an

effective enforcement mechanism may, in practice, be valueless. If an agreement

or award which is not voluntarily carried out cannot be coercively enforced

against a recalcitrant party, then the rationale for arbitration is eroded and

confidence in the arbitral process would be shaken.8

What is the essence of arbitration generally if arbitral award rendered by arbitral tribunal is not enforceable in Nigeria? Scholars, writers, and the courts in Nigeria are all in agreement that foreign awards are enforceable in Nigeria.9 This paper shall now proceed to review the enforcement procedure under the various legislation and conventions applicable to Nigeria.

8 Amazu A. Asouzu, “The Adoption of the UNCITRAL Model Law in Nigeria, Implication of the Recognition an Enforcement of Arbitral Awards,” Journal of Business Law, 1999, 185.9 M.S.S. Line v. Kano Oil Millers (1974) NNLR 1. A.C. Toeper Inc. of New York v. John Edokpolor (1965) ALL NLR 292. Ezejiofor Gaius, The Law of Arbitration in Nigeria, Longman Nig. Plc, 1997, 173-174. Orojo J. O. & Ajomo, Law and Practice of Arbitration and Conciliation in Nigeria, Mbeyi & Ass. Nig. Ltd, Lagos, 1999, 304-305.

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A. Enforcement under the Foreign Judgment (Reciprocal Enforcement) Act.

Pursuant to the provisions of the Foreign Judgment (Reciprocal Enforcement) Act, a judgment or an award rendered in a foreign country may be enforced in Nigeria within six years of the judgment or award. For such foreign award to be enforceable in Nigeria, it must have been capable of enforcement in the country of its origin.10 For arbitral award to merit enforcement under this Act, such arbitral award must have acquired the character of a judgment in the foreign country where it was made.For a foreign award to be enforced pursuant to this Act, there must be evidence of reciprocity showing that the country from where the award originated treats Nigerian judgments and arbitral awards with equal level of respect and would not hesitate to enforce same. The application for the registration of the award shall be served on the respondent as the order to be made shall affect his interest. The application shall be made by originating summons within six years of making of the award or where there have been proceedings by way of appeal against the judgment, after date of the last judgment given in those appeal.11

The superior court in Nigeria will not enforce the award if at the time of the application for its enforcement there exists an appeal in any court on the award for purposes of setting it aside or if it has wholly been satisfied or it could not be enforced by execution in the country of the original court. The enforcement of foreign award under this Act shall not be made if the court is satisfied that the arbitral tribunal had no jurisdiction in the circumstances of the case to deal with the matter, if the successful party or the arbitral tribunal failed to serve notice of its proceedings to the defendant, if the award was obtained by fraud, and if the enforcement of the award will be contrary to the public policy of Nigeria12.10 Foreign Judgment (Reciprocal Enforcement) Act Cap F35 Laws of the Federation of Nigeria 2004, Section 2.11 Section 4(1) of the Act (Cap F35 L.F.N. 2004)12 The Recognition and Enforcement of International Arbitral awards in Nigeria: The Issue of Time Limitation PROF.GREG CHUKWUDI NWAKOBY FCIArb* DR. CHARLES EMENOGHA

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B. Enforcement under S.51 of the Arbitration & Conciliation Act. An international arbitral award may be enforced pursuant to the provisions of section 51 of the Act which provides inter alia that “an arbitral award shall, irrespective of the country in which it is made, be recognized as binding and subject to this section and section 32 of this Act shall, upon application in writing to the court, be enforced by the court.”13 The party relying on an award or applying for its enforcement pursuant to this Act shall supply the following:-a) the duly authenticated original award or a duly certified copy thereof;b) the original arbitration agreement or duly certified copy thereof; andc) where the award or arbitration agreement is not made in the English Language, a duly certified translation thereof into the English Language.14

We must at this stage state that the use of the term “irrespective of the country where the award was made” gives the impression that the requirement of reciprocity as in the provisions of Cap F 35 (Foreign judgment Reciprocal Enforcement Act) had been waived and hence is not a requirement for enforcement of foreign awards pursuant to section 51 of Arbitration and Conciliation Act of Nigeria. Knowing the attitude of Nigerian courts as expressed in M.S.S v. Kano Oil Millers15 and A.C .Toepter Inc of New York v John Edokpolor,16 reciprocity of treatment is required in the enforcement of foreign award in Nigeria pursuant to section 51 of the Act. The Supreme Court of Nigeria which is the highest court of the land had decided in the two cases aforesaid that “reciprocity of treatment” is material in the enforcement of foreign arbitral awards in Nigeria. This is an acceptable practice recognized internationally.The method of enforcement under S.51 of the Act is by application to Court which is by motion on notice.

ADUAKA Journal of Law, Policy and Globalization www.iiste.org ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.37, 201511613 Arbitration and Conciliation Act Cap A18 L.F.N. 2004, Section 51(1).14 Section 51(2) of the Act (Cap F35 L.F.N.2004).15 (1974) NNLR 1.16 (1965) All NLR 92

http://www.iiste.org/

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However, the application for enforcement may be refused if the Respondent against whom enforcement is sought furnishes proof of the following facts;a) that a party to the arbitration agreement was under some incapacity.b) that the arbitration agreement is not valid under the law in which the parties have indicated should be applied.c) that he was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings.d) that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration.e) that the award contains decisions on matters which are beyond the scope of the submission to arbitration.17

C. Enforcement under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards June 10, 1958 (New York Convention)

New York Convention applies to Nigeria by virtue of section 54 of the Arbitration and Conciliation Act which provides that,

Without prejudice to sections 51 and 52 of this Act, where the recognition and enforcement of any award arising out of an international commercial arbitration are sought, the convention on the Recognition and Enforcement of Foreign Award (hereafter referred to as “the Convention” set out in the second schedule to this Act shall apply to any award made in Nigeria or in any contracting State.

Nigeria acceded to the Convention on 17th March, 1970 but no serious efforts were made to domesticate the Convention in Nigeria until the promulgation of the Decree in 1988. Today the Convention has been given right place of existence by incorporating it in section 54 of the Act and second schedule to the Arbitration and Conciliation Act. The New York Convention is one of the many, perhaps, one of the most important of the attainments of the United Nations in promoting a more effective and

17 Section 52(2) of the Act (Cap A18 L.F.N. 2004).

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universal rule of law. It promotes the peaceful settlement of international disputes, not the sort of disputes between states with which the United Nations Charter is concerned, but commercial disputes which are inherent in international trade and transactions.In Nigeria, recognition and enforcement of foreign arbitral awards under New York Convention are enforceable by leave of the Judge or Court, and by application to Court. (1) A party seeking to enforce his arbitral award pursuant to the Convention shall at the time of filing his application supply the appropriate court with the duly authenticated original award or a duly certified copy thereof and the original agreement referred to in Article II of the Convention or a duly certified copy of it. Where the arbitral award sought to be enforced or the agreement is not in an official language of the country in which the award is sought to be enforced, the party seeking for the enforcement shall obtain translation of the arbitral award or the arbitration agreement in the official language of that country. (2) The party against whom the recognition and enforcement is sought may request the court to refuse recognition and enforcement of the award pursuant to the grounds set out in Article V of the Convention. It needs be mentioned specifically that for an arbitral award to be enforced in Nigeria under the New York Convention, it must be shown that such a contracting state has a reciprocal legislation authorizing the recognition and enforcement of arbitral awards made in Nigeria.18 Enforcement by Action at lawThis method is usually used to enforce non statutory awards which are awards arising out of other domestic means such as customary arbitral award. In such a case, the award creditor has got to institute an action by way of Writ of Summons wherein he pleads the entirety of his case simultaneously with the fact of Arbitration and Award. The state of law is as

18 The Recognition and Enforcement of International Arbitral awards in Nigeria: The Issue of Time Limitation PROF.GREG CHUKWUDI NWAKOBY FCIArb* DR. CHARLES EMENOGHA ADUAKA Journal of Law, Policy and Globalization www.iiste.org ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.37, 2015116


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stated in Eke v Okwaranyia19 when the Supreme Court held that a party seeking enforcement of customary law arbitral award shall plead and prove the following:(a) That there had been a voluntary submission of the matter in dispute to

an arbitration of one or more persons.(b) That it was agreed by the parties either expressly or by implication

that the decision of the arbitrators would be accepted as final and binding.

(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.

(d) That the arbitrators reached a decision and published their award.(e) That the decision or award was accepted at the time it was made.

International arbitral awards are enforceable by action at law like the domestic arbitral awards. This is because international commercial arbitration agreement like any other agreement is enforceable and the breach of the same will be a ground for action at law.Although the enforcement by summary application is by far the commonest method of enforcement, and is intended to provide a quicker method than that of an action, yet the method of action on an award remains available in appropriate cases, especially where the summary application method is for any reason unavailable.

Authority with jurisdiction over the recognition and enforcement domestic and foreign arbitral awards. The competent authority in Nigeria to enforce or recognize an arbitral award would depend on the statute under which the enforcement and recognition application is sought. Under the International Center for Settlement of Investment Dispute Act (ICSID), the competent authority under section 1 of

19 (2001) 4 SCNJ 300 at 323-324.

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the Act is the Supreme Court.20 Under the Arbitration and Conciliation Act, the competent authorities are the Federal High Court and the State High Court.21 The major question in the area has been whether both courts have concurrent jurisdiction over the same matter. Can matters that come up for arbitration whose subject matter falls within the exclusive jurisdiction of the Federal High Court be enforced or recognized by the State High Court? Does arbitration give rise to a separate cause of action that can be distinguished from the subject matter of the contract that led to arbitration? How important is procedure and the rules of court to the jurisdiction and competence of the courts and what role have parties to play to ensure that the court they resort to has jurisdiction. The Supreme Court in Magbagbeola v Sanni,22 was called upon to address the issue, whether the exclusive jurisdiction of the Federal High Court under section 251 of the 1999 Constitution (Nigeria) included matters in the list which had become the subject matter of an arbitration. The Court held that the definition of “high court” under the Arbitration and Conciliation Act is applicable to arbitral proceedings. They referred to section 57(1) which defines “court” as the high court of a State, the Federal Capital Territory or the Federal High Court and a “judge” as any judge of such courts. The competent court(s) that recognize and enforce a foreign arbitral award is different in different jurisdictions. For instance, in France and Belgium, which are civil jurisdictions they define the applicable law in the arbitration agreement as the procedural law regardless of the venue of arbitral proceedings,23 vests the power to issue an 20 “where for any reason it is necessary or expedient to enforce in Nigeria an award made by the International Centre for the Settlement of Investment disputes, a copy of the award duly certified by the Secretary-General of the Centre aforesaid, if filed in the Supreme Court, by the party seeking its enforcement in Nigeria, shall for all purposes have effect as if it was an award contained in a final judgment of the Supreme court, and the award shall be enforceable accordingly.”(emphasis supplied).21 Mr. Adeoye Magbagbeola v Temitope Sanni [2005]11 NWLR (part 936) 239,253paras A-C (Supreme Court) (Nigeria).22 ibid23 Author unknown , Recognition and Enforcement of Foreign Commercial Arbitral Awards Relating to International Commercial Disputes: Comparative Study (English and Jordanian Law), unpublished PHD thesis, 1,56 available at ,http://www.iccwbo.org/uploadedfiles/InstitutePrize/Recognition%20and%20

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enforcement order for a foreign award in the same court as that which has jurisdiction to recognize and enforce national or domestic awards. In some other countries, the Court of Appeal which is higher in hierarchy to the court of first instance is the competent authority to issue an enforcement order. In the United Kingdom, the competent authority under section 105 of the UK Arbitration Act 1996 is the High Court or the County Court. For recognition and enforcement under the Washington Convention, section 1(2) of the UK Arbitration (International Investment Disputes) Act 1966, the competent authority is the high court. The same court is given the power to enforce an ICSID award as its own judgment under Article 2 of the same Act.24 In Nigeria, the Arbitration and Conciliation Act does not differentiate between the courts that have jurisdiction over the recognition and enforcement of domestic and foreign awards, but the regime is different with regards to awards made by the International Center for Settlement of Investment Disputes (ICSID). Under the section 1 of the ICSID Act, a party seeking to enforce an arbitral award would file a copy of the award duly certified by the Secretary General of the International Centre for Settlement of Investment Disputes at the Supreme Court and this would be sufficient to make the award a judgment of the supreme Court of Nigeria and enforceable as same. A relevant factor to the competence of the Nigerian courts is the Rules of Court which must be followed depending on the type of application made by the party. In Nigeria, the competent authorities are the High Courts of the State, the Federal Capital Territory and the Federal High Court. The exclusive jurisdiction of the Federal High Court does not extend to arbitration. This includes arbitration that involves government agents which ordinarily would fall within the exclusive jurisdiction of the federal high court.

enforcement%20of%20foreign%20arbitral%20awards_English%20Jordanian%20Law_1.pdf?terms=enforcement+of+arbitral+awards+in+Jordan, (official website for the court of arbitration, at the International Chamber of Commerce) visited on 9th October 2007 at 7:34pm. 24Ibid 81, 55.

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The advantage of having to resort to the Federal High Court is that the court has federal jurisdiction which means that an execution order against assets of the award debtor can be attached in any state in the federation. The territorial limitations that affect state high courts do not affect the federal high court making the process of execution less procedural or cumbersome.

Setting aside of an arbitral award. The grounds for recognition and enforcement in Nigeria cannot be discussed in isolation of setting aside of arbitral awards because the two regimes are intertwined. Setting Aside of an arbitral award must be distinguished from enforcement and recognition of arbitral awards. To set aside an award means the award is invalidated and not only ceases to exist but also has the effect of never existing. Recognition of an award on the other hand, is a court process recognizing the award and is used as a shield against the denial of the existence of the award. Enforcement is also a court proceeding that acts as a defense against refusal to recognize and enforce an award or to set aside an award.Grounds for setting aside of an arbitral award. The attitude of the court to setting aside of arbitral awards can be summarized in the observation made in Clement C. Ebokan v Ekwernibe, Ogundare,25 Justice of the Court of Appeal stated,

“I would observe that we must not be over ready to set aside awards where parties have agreed to abide by the decision of a tribunal of their own selection, unless we see that there has been something radically wrong and vicious in the proceedings.”

The below listed grounds are grounds which when raised and proved by the Defendant would likely influence the court to refuse recognition and enforcement of an arbitral award.

25 [2001] F.W.L.R. (part 46) 932, 953(Court of Appeal) (Nigeria).

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i. Incapacity of a party or parties to the arbitration agreement26 ii. Invalidity of the Arbitration Agreement27

iii. Absence of proper notice of appointment of Arbitrators or of proceedings28

iv. Award dealing with disputes not contemplated by partiesv. Award beyond the jurisdiction of the tribunal29

vi. Composition of arbitral tribunal or procedure contrary to agreement of parties

vii. Composition of arbitral tribunal or procedure contrary to law30

viii. Award not binding, set aside or suspendedix. Where award is contrary to or against public policy31

Time limitation for Recognition and Enforcement.

Time Limitation for recognition and enforcement of foreign arbitral awards in Nigeria is governed by statutes. Generally, statute of Limitation is the law which sets out time within which an aggrieved person can present or file his matter for determination by the court or any other body established for that purpose.

26 Section 52 (2) (a) (i) of the Act.27 Section 47(1) & (2) of the Act.28 Section 52(2) (a) (iii) of the Act. New York Convention, Article V (1)(b).29 Section 52(2)(a)(v) of the Act.30 Section 52(2)(a)(vii) of the Act. New York Convention, Article V(2)(1); FIRS v. NNPC &4 ors (2012)6TLRN 1 at 12 where the court decided that tax is a statutory matter and that a specified court has been given jurisdiction to try it and not arbitration.31 Section 52(2)(b)(ii) of the Act. New York Convention, Article V (2)(2). In construing the provisions of the New York Convention on Public Policy, Finbery C.J, had this to say in Waterside Ocean Navigation Co. Inc v International Navigation Ltd:

It…must be construed in the light of the overriding purpose of theconvention, which is to encourage the recognition and enforcement ofcommercial arbitration agreements in international contracts and tounify the standard by which agreements to arbitrate are observed …thus this court has unequivocally stated that the public policy defenceshould be construed narrowly. It should apply only where enforcementwould violate our most basic notion of morality and justice.

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The Limitation Act has placed the time limitation period for bringing an action including arbitration to six years. The question is, when does the six years start to run? In M.S.S Line v Kano Oil Millers Ltd32, The Supreme Court decided that the period of limitation runs from the date on which the cause of arbitration occurred, that is to say, from the date when the claimants first acquired either a right of action or a right to require that arbitration takes place upon the dispute.

Respectfully, this writer disagrees with this decision of the Supreme Court of Nigeria as it is in correct and not in tandem with international standards. Arbitration agreement has two main undertakings, the first being an undertaking to submit to arbitration when the dispute occurs, and the second being an undertaking to comply with the arbitral award when made. These two undertakings constitute two distinct contracts. It follows therefore that the time limitation for reference to arbitration runs from the date of the breach giving rise to arbitration whereas the second limitation period for enforcement starts to run from the date the defendant refused to comply with the terms of the award. This is because the same Supreme Court had in K.S.U.D.B v. Fanz construction Co. Ltd.,33 stated that an award once published extinguished any right of action in respect of the substantive matter in dispute and gives rise to a new cause of action based on the agreement between the parties to perform the award implied in every arbitration agreement.

In contrast, in the case of Turner v Midland Rly Co,34 the English court decided that “when an action is brought upon an award, the six year period of time limitation runs from the date of the award and not from the moment when the claim arose, for the award itself gives rise to a new cause of

32 (1974)NNLR 133 (1990)4NWLR (Pt.142)1 at 37.34 (1911)1KB 832

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action”. A similar view was expressed in the Halsburys’ Law of England where it was stated that,

“The effect of award is such as the agreement of reference expressly or

by implication prescribes where no contrary intention is expressedand where such a provision is applicable every arbitration agreementis deemed to contain a provision that the award is final and bindingon the parties and any person claiming under them respectively …The publication of the award thus extinguishes any right of action inrespect of the former matters in difference but gives rise to a newcause of action based on the agreement between the parties toperform the award which is implied in every arbitration agreement.”35

The position in England and the correct position remains the one established in Agromet Moto import Ltd v Maulden Engineering Co (Beds) Ltd,36 where the court decided that time begins to run from the date of the breach of the implied term to perform the award and not from the date of the accrual of the original cause of action giving rise to the submission. It is therefore advised that the courts in Nigeria should reconsider their position by stating the law to be in accordance with the English position as expressed in Agromet case.37

Practice in Other Jurisdictions

In England, the Arbitration Act 1996 regulates the Arbitration matters, as well as the Supreme Court of England and Wales Country Courts Civil Procedure Rules 1998, amply made provisions for the enforcement of arbitral awards in England. Section 66 (1) of the Arbitration Act 1996 (UK) which is in

35 Halsbury’s Law of England, 4th Ed. Vol.12 Para 514-515.36 (1985)1 WLR762. (1985)2 All ER 436.37 The Recognition and Enforcement of International Arbitral awards in Nigeria: The Issue of Time Limitation PROF.GREG CHUKWUDI NWAKOBY FCIArb* DR. CHARLES EMENOGHA ADUAKA Journal of Law, Policy and Globalization www.iiste.org ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.37, 2015116


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pari material with section 31(3)38 of the Act, that an arbitration award may, by leave of the court be enforced in the same manner as a judgment or order of the court, where leave is granted, judgment may be entered in terms of the award. Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make award39 The procedure is to simply file an Arbitration claim form which will include a concise statement of the remedy claimed and any questions on which the claimant seeks the decision of the court and give details of any arbitral award challenged by the claimants, identifying which parts of the award are challenged and specifying the grounds for the challenge. The rules makes provisions on issues such as service outside jurisdiction, how notice may be served and on who.40 case management hearings and the enforcement of the arbitral awards. The application is simply made in the arbitration claim form to enforce the award in the same manner as a judgment or order of court.41 All parties are expected to be served and the hearing will proceed notwithstanding that the defendant did not appear. The procedure in England is simple, direct and uncomplicated. There is no use of archaic procedure like motions or Originating summons like the Nigerian provisions which are in themselves not created for or suitable for arbitral proceedings under Nigerian law.The Brazilian law as provided in the Arbitration law of 1996 abolished the requirement for judicial ratification of arbitral awards. This law equated an arbitral award with other judicial decisions or judgment42 and expressly provides that the arbitrator is equivalent to a judge for the purposes of the arbitration proceeding.43 However, any party may apply to set aside an award in Brazil but the applicant must adopt the procedure of any ordinary suit to annul a legal act. 38 Order 26 rule 8 Federal High Court (Civil Procedure) Rules 2009.39 Order 26 rule 12 (1).40 Arbitration and conciliation Act.41 Section 66 (3) Arbitration Act 1996 (UK).42 In cases where the claimant is challenging the arbitral award see section 62.4.43 Section 62. 6.

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Conclusion

Arbitration as an alternative to litigation will lose its numerous advantages if it loses the primary benefit of speedy dispensation of justice. In other words, if parties who have agreed on going through with arbitration would after the conclusion of arbitration process be subjected to a cumbersome and time consuming process of enforcement of award, then, it will appear that they would have been better off with litigation. This writer suggests that the judiciary, parties, and stakeholders should err on the side of caution when it comes to recognition and enforcement of arbitral awards to avoid relegating the Arbitration to the level of litigation. The writer totally agrees with Kunle Aina’s submission that:

“Motion on Notice or Originating Summons though seems to be the only procedure recognized under the rules, are only devised for normal ordinary court trials and interlocutory applications and is totally useless when faced with arbitral proceedings. The best course is to amend the law by creating a new and special procedure for the enforcement of arbitral awards. All the High Court Rules ought to create a special procedure and section of the rules for arbitral proceedings; until this is done, the courts will continue to grapple with the problematic procedures, and the parties to arbitral awards will continue to wait until the slow wheels of court process grounds to a halt before they can enjoy the fruits of their labour.44”

44 Nigeria Procedure for the enforcement of domestic arbitral awards in Nigeria Civil Procedure Review, v.5, n.2: 22-44, may-aug., 2014 ISSN 2191-1339 – www.civilprocedurereview.com * Kunle Aina is a Senior Lecturer at the University of Ibadan, Nigeria

Chief J. Akingbola Akinola, FCIArb, Chartered ArbitratorPartner, THE LAW UNIONPlot 35 Block 93 Awkuzu StreetOff Providence RoadLekki Phase 1Lagos.Email: [email protected], [email protected]: +234 8034207227

mailto:[email protected]

mailto:[email protected]

http://www.civilprocedurereview.com/

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ENFORCEMENT OF ARBITRAL AWARDS - G.O. · Web viewThese arbitral awards, products of hours and...

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