NIGERIA Law and Practice Contributed by: Olasupo Shasore, Mofiyinfoluwa Enitan, Ibukun Fasoro and Bamidele Ikusika, Africa Law Practice NG & Company
However, any challenge for failure or impossibility to act may be presented at any time. However, any chal - lenge against an emergency arbitrator must be pre - sented within three days of the party becoming aware of the circumstance giving rise to the challenge. See Section 17 of the AMA. 4.5 Arbitrator Requirements Requirements of Independence, Impartiality and Disclosure Arbitrators in Nigeria must be independent and impar - tial. They are required to disclose any circumstances likely to give rise to justifiable doubts as to their impar - tiality or independence (Sections 7 (5 (b) and 8 (1) of the AMA). The disclosure must be made without delay, ensuring transparency so the parties can con - sider whether to challenge the arbitrator’s appoint - ment. This duty applies both before acceptance of appointment and throughout the proceedings if new circumstances arise. The principal arbitration institu - tions used in Nigeria incorporate similar standards. Tribunal’s Power to Rule on Its Own Jurisdiction The principle of competence‑competence is expressly recognised and applied under Section 14 of the AMA as it grants an arbitral tribunal the power to rule on its own jurisdiction, including objections with respect to the existence or validity of the arbitration agree - ment; and whether the tribunal is properly constituted or empowered to decide the dispute. See Candide - Johnson & Ors v NPA & Ors (2017), LPELR-45357 (CA) where the Court of Appeal expounded on this princi - ple under Section 12 of the Arbitration and Concilia - tion Act. 5. Jurisdiction 5.1 Challenges to Jurisdiction 5.2 Circumstances for Court Intervention Circumstances Where Courts May Address Jurisdiction Courts may address the jurisdiction of an arbitral tri - bunal in three key scenarios. • At the preliminary stage – where a party applies for a stay of court proceedings on the ground that the dispute should be referred to arbitration, the court
must decide prima facie whether a valid arbitration agreement exists. • Where the court finds that a party clearly and unequivocally admits its indebtedness, even if no payment has been made, the matter ceases to be a dispute capable of resolution by arbitration and to warrant the invocation of the arbitral clause contained in the agreement executed between the parties. • After a tribunal’s positive ruling on jurisdiction – if a tribunal rules under Section 14 (6) of the AMA that it has jurisdiction, an aggrieved party may apply to the court (usually within 30 days) to contest that ruling. • At the setting‑aside or enforcement stage – after an award has been made, the court may, under Section 55 (3) and 58 (2) of the AMA, consider whether the tribunal had jurisdiction when asked to set aside or refuse enforcement of the award. Nigerian courts generally defer to the arbitral process and encourage parties to raise jurisdictional objec - tions first before the tribunal (reflecting the compe - tence‑competence principle). If the tribunal rules that it does not have jurisdiction (a negative jurisdictional ruling), Nigerian courts can review this. Under the AMA, a party dissatisfied with a negative ruling may apply to the court for a determination, and the court can overturn the tribunal’s finding if appropriate. 5.3 Timing of Challenge Timing for Challenge Before the Court Parties have structured opportunities to ask the court to review an arbitral tribunal’s jurisdiction. These opportunities arise at different stages. • Before the tribunal is constituted – a party sued in court despite an arbitration agreement may apply for a stay of proceedings and referral to arbitration. The court then assesses prima facie whether a valid arbitration agreement exists. • After the tribunal is constituted and makes a positive jurisdiction ruling – if the arbitral tribunal decides it has jurisdiction (usually raised as a pre - liminary issue under the competence‑competence principle), an aggrieved party may apply to the court (generally within 30 days) to challenge this
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