NIGERIA Law and Practice Contributed by: Adeyinka Aderemi, Chinasa Unaegbunam, Omono Blessing Omaghomi and Ibukun Enigbokan, Streamsowers & Köhn
4.2 Variations in Approach to Enforcement of Arbitral Awards In Nigeria, the approach to enforcement is the same for different types of arbitral awards. The few excep - tions are awards given by the International Centre for Settlement of Investment Disputes (ICSID) and awards with certain subject matters. Section 1 (1) of the ICSID (Enforcement of Awards) Act Cap I20, Laws of the Federation of Nigeria, 2004 provides that, if it is expedient to enforce an award made by the ICSID in Nigeria, a copy of the award duly certified by the Secretary-General of the Centre shall be filed directly at the Supreme Court of Nigeria by the party seeking its recognition for enforcement in Nigeria. Except for ICSID awards, other arbitral awards can be enforced at the Federal High Court, the High Court of a state and the High Court of the Federal Capital Territory, Abuja, unless the parties agree otherwise. The Act is silent on the subject matter jurisdiction of the court in enforcement proceedings that can be filed before a superior court as provided in the Act. A superior court is defined in the Act as the High Court of a State or the Federal Capital Territory, Abuja, or the Federal High Court. However, recent trends and decisions of the court lean toward registration and enforcement in the court whose jurisdiction covers the subject matter of the arbitral award sought to be enforced. Where the subject matter of the award sought to be registered is under the exclusive jurisdic - tion of the Federal High Court, as provided by Sec - tion 251 (1) of the 1999 Constitution, the Federal High Court would be the appropriate court to commence the enforcement proceedings. 4.3 Categories of Arbitral Awards Not Enforced Arbitral awards are not enforceable in the following instances: • if the party against whom an award is sought to be enforced furnishes proof of the presence of vitiat - ing elements, such as: (a) the arbitration agreement was invalid by reason of the incapacity of one of the parties thereto, or was not valid under the governing law of the
However, this bar to arbitration and the enforce - ment of awards in Nigeria has now been decisively dealt with under the new Act, Section 55 (2) of which expressly prevents a court from setting aside an arbi - tral award on “the ground of an error on the face of the award”. This essentially prevents the court from overturning an award on the basis that it believes the tribunal incorrectly applied the law. Section 55 (5) of the Act introduces a more onerous test for an award to be set aside, which is likely to result in fewer suc - cessful challenges to arbitral awards in courts. It is no longer sufficient for a party simply to show that one of the grounds for setting aside an award is present; it must also show that the ground “has caused or will cause substantial injustice to the applicant”. The Act, therefore, adopts a far more robust approach to the setting aside of arbitral awards, reducing the ability for the courts to intervene in, and potentially set aside, arbitral awards, thereby enhancing the finality and preservation of the awards. According to Section 56 (1) of the AMA, parties may stipulate in their arbitration agreement that an applica - tion to review an arbitral award be made to an Arbitra - tion Review Tribunal (ART). Like the court, the ART is unable to review an award on the merits and can only set aside an arbitral award on specified grounds. The AMA empowers the court to review the decision of the ART. The court may uphold the reviewed decision of the ART or set it aside for the status quo to revert to the original award. The degree of judicial intervention is limited by Subsection 9, which provides that the court may only set aside an award made by the ART where the subject matter in dispute is not capable of settlement by arbitration under the laws of Nigeria, or where the award is contrary to public policy. Section 56 (7) of the AMA provides that an applica - tion to the ART does not preclude an application to the court; an application for review by the court or the ART must be made within three months from the date the award was received. Thus, to fall within the limitation period, an aggrieved party may simultane - ously institute an action in court for the enforcement of the award without prejudice to the proceedings at the ART. The proceedings may be stayed pending the determination by the ART and may be resuscitated thereafter.
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