NIGERIA Law and Practice Contributed by: Olasupo Shasore, Ibukun Fasoro, Tochukwu Amaefule and Michael Chukwu, Africa Law Practice NG & Company
questions of timing, waiver, or compliance with pre- conditions, seeing these as matters of admissibility, not jurisdiction. In practice, courts adopt a more def - erential approach to such matters, declining to revisit the tribunal’s conclusions except in cases of clear excess of mandate or misconduct. 5.5 Breach of Arbitration Agreement Pro Arbitration Judicial Approach Nigerian courts adopt a pro‑arbitration stance toward parties who commence court proceedings despite having agreed to arbitrate. This is reinforced by the AMA which largely follows the UNCITRAL Model Law. When a dispute comes before a court in breach of an arbitration agreement, the usual approach is for the defendant to promptly apply for a stay of proceedings and request referral to arbitration. Provided the arbi - tration agreement is valid, operative, and capable of being performed, courts generally compel arbitration and stay their own proceedings. Reluctance to Entertain Parallel Litigation The courts recognise that permitting litigation to pro - ceed would undermine party autonomy and the effec - tiveness of the arbitration process; as a result, they are generally reluctant to allow parallel proceedings to continue. Exceptions and Procedural Discipline However, courts do expect the party relying on the arbitration agreement to act promptly as delay, waiver or conduct inconsistent with an intention to arbitrate can lead courts to refuse a stay. In practice, courts scrutinise the timing and conduct of the party seek - ing to enforce the arbitration agreement to ensure it has not participated substantially in the court action before seeking the stay. 5.6 Jurisdiction Over Third Parties Limited Circumstances Under Nigerian Law An arbitral tribunal generally lacks jurisdiction over individuals or entities that are not signatories to the arbitration agreement. However, Nigerian courts and tribunals may extend the effect of an arbitration agree - ment to non‑signatories where a non‑signatory so completely controls a signatory that it is appropriate to disregard the separate legal personality; a party
has expressly or impliedly authorised another to enter into the arbitration agreement on its behalf; a non‑sig - natory subsequently assumes obligations under the contract containing the arbitration clause or where a non‑signatory has conducted itself in a manner that makes it inequitable to deny being bound, such as actively participating in the arbitration. Application to Foreign and Domestic Third Parties These principles apply equally to foreign and domes - tic parties. However, while tribunals seated in Nigeria may address jurisdictional objections and rule on their own jurisdiction under the principle of competence- competence, the question of binding non-signatories often ultimately depends on later judicial review – par - ticularly if enforcement of an award against the non- signatory is sought. 6. Preliminary and Interim Relief 6.1 Types of Relief Tribunal’s Power to Award Interim Reliefs and Types of Interim Measures Available An arbitral tribunal is expressly empowered to grant interim measures of protection. Such interim meas - ures are binding rather than merely advisory. Once granted, they have the same effect as an order of the tribunal and may be recognised and enforced by the courts, unless the court decides otherwise on limited grounds set out in the AMA. The tribunal may order a wide range of interim relief, including but not limited to preservation of assets that might later be used to satisfy an award and maintenance or restoration of the status quo pending determination of the dispute. Please see Section 20 of the AMA. 6.2 Role of Courts Court-Ordered Interim Measures in Support of Arbitration Nigerian courts do play an important complementary role in granting preliminary or interim relief in arbitral proceedings. The courts may grant a broad range of interim relief in relation to domestic or foreign seated arbitration, including: • orders preserving the subject matter of the dispute;
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