The concept of a free-market economy presents opportunities for disputes in the pursuit of economic gains. In seeking the determination of their rights and liabilities, or the amicable settlement of their disputes, parties can have recourse to the court system or to alternative dispute resolution (ADR) methods. Although ADR includes other methods and mechanisms such as meditation, conciliation, and negotiated settlement, arbitration has however become the main alternative to resolving or determining commercial disputes. Generally speaking, ADR has gained widespread acceptance in trade and commercial disputes, to the extent that in some jurisdictions, the Court Civil Procedure Rules now require some parties to resort to some type of ADR, usually in the form of meditation, before permitting the parties’ cases to be tried.
In this book I have tried to lay out the framework for arbitration and conciliation, the agreement to arbitration and the practice and procedure of commercial arbitration. In so doing I have tried to bring to the fore the practical situations and issues that parties, counsel, arbitrators and all that are involved in this system of dispute resolution face. It is therefore intended to be practice handbook. The jurisprudence and recent case law discussed in the book provided the basis of academic research, and form a practical in the field of commercial arbitration in Nigeria. The principles underlying the law and practice of arbitration are applicable not only to Nigerian, but to a number of common law countries, including signatories to the New York convention. I have tried to present the law and practice as they exist today.
In fourteen chapters, I have attempted to look at the general principles and legal framework of arbitration, including the law and procedure applicable to arbitration. The nature of the arbitration agreement is examined, with emphasis on the essential elements of an arbitration clause, common defects in arbitration clauses, jurisdictional and enforcement issues. Forum of arbitration, capacity to arbitrate, place and language of arbitration are also discussed.
The practical aspects of commencement of arbitration, as well as difficulties with commencement are discussed in chapter four. The constant challenge of forum of dispute resolution (litigation or arbitration) is treated in chapter six dealing with ‘stay of proceedings’. The discussions cover recourse to court for preservative orders, as well as case law on when a party is deemed to have taken a step in the proceedings. The later chapters deals with arbitration proceedings and preliminary issues such as admissibility of evidence, adherence to rules of evidence, methods of presenting evidence, and the standard as well as the burden of proof in arbitration. Arbitration proceedings and Award are treated in chapters eight and nine respectively.
I have attempted to deal with the pressing issues of enforcement of awards, and challenge of arbitral awards. A chapter is dedicated to mediation and conciliation and another, to the techniques for settling of disputes. With the benefit of practice experience, and feedback from teaching at the professional training programmes for arbitrators. I have included templates and precedents that should be of practical value to the practitioner, and a case study to form the basis for moot proceedings.
All of these have brought depth and meaning into this book on the law and practice of commercial arbitration in Nigeria. This book lays no claims to perfection, and I, therefore, take full responsibility for any errors of omission or commission that may be found herein.
Fabian Ajogwu FCIArb.
March 2, 2009