NIGERIA Trends and Developments Contributed by: Vincent Owhor, Akinola Samuel Oladimeji and Zaynab Abdussalam, Streamsowers & Köhn
under the ACA and it reflects a growing recognition of the need for procedural efficiency in multiparty dis- putes, particularly where claims arise from intercon- nected contracts or share common legal and factual issues. Under the AMA, consolidation or concurrent hearings may be pursued where proceedings are sufficiently related ‒ whether by virtue of originating from the same legal relationship, involving similar questions of law or fact, or being otherwise connected. Article 32 of the Arbitration Rules in the First Schedule to the Act (the “Rules”) also permits an arbitral tribunal to consider consolidation or concurrent hearing where either: • the same arbitrators have been appointed in more than one arbitration; • all claims arise under the same arbitration agree- ment; or • different arbitration agreements give rise to dis- putes that share common questions of law or fact and relate to the same transaction or series of transactions. However, the tribunal’s authority to consolidate or conduct concurrent hearings is strictly limited by the principle of party autonomy. Such procedural co-ordi- nation can only occur with the express consent of all parties involved. The requirement of parties’ consent presents practical limitations. In reality, even a single party’s refusal can derail efforts to consolidate proceedings, resulting in fragmented arbitrations that are inefficient and poten- tially inconsistent. Without prior contractual arrange- ments or arbitration clauses that anticipate and permit consolidation or submission agreements, parties may find themselves unable to pursue a collective resolu- tion of disputes. A party seeking consolidation is required by the Rules to submit a formal request containing detailed infor- mation, including: • the identities and contact details of all parties and arbitrators involved; • copies of the relevant arbitration agreements and underlying contracts;
• a summary of the claims and reliefs sought; and • legal arguments supporting the request. The request must also address the composition of the tribunal in the event consolidation is granted. Any dispute regarding the sufficiency of the request is to be resolved by the tribunal itself. Thus, even though Section 39 of the AMA marks a progressive step towards harmonising multiparty arbitration, its effectiveness depends heavily on how parties structure their arbitration agreements and whether they proactively provide for consolidation mechanisms at the drafting stage. Procedure for appointment of arbitrators The appointment of arbitrators in multiparty disputes presents unique procedural challenges, particularly when parties are unable to agree on how to consti- tute the tribunal. In traditional bilateral arbitration, where parties opt for a three-member tribunal, each party typically appoints one arbitrator and the two appointees jointly select a third. However, this model becomes problematic in multiparty settings, where multiple claimants and respondents may each seek to nominate their own arbitrator ‒ potentially resulting in an unwieldy and unbalanced tribunal. Section 7 (3)(c) of the AMA addresses this issue by introducing a mechanism to resolve deadlocks in arbitrator appointments. Where multiple parties fail to agree within 30 days on how to organise themselves into two sides (claimants and respondents) for the pur- pose of constituting the tribunal, the responsibility for appointment shifts to an agreed appointing authority. In the absence of such designation, any arbitral insti- tution in Nigeria or the court may be approached to constitute the tribunal upon application by any party. Also, with regard to consolidated proceedings, per Article 33 of the Rules, once consolidation is ordered, all parties are deemed to have waived their right to nominate arbitrators. In such cases, the director of the Regional Centre for International Commercial Arbi- tration Lagos assumes responsibility for appointing the tribunal for the consolidated proceedings. Fur- thermore, parties are precluded from challenging the validity or enforceability of any award rendered in the
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