Introduction
For many decades, arbitration has remained the mechanism of choice for the resolution of disputes between and among commercial parties. Owing to its well documented benefits - arbitration is perceived to be faster, more business-friendly, and efficient - countries have historically competed, and indeed continue to compete, through legislation, court decisions and policies to have their jurisdictions perceived as arbitration friendly.
Using
There were also significant developments in the arbitration space in
In what follows, we discuss the above and other pertinent Arbitration-related developments in
The Nigerian Arbitration and Mediation Act 2023
On
In a series of publications, the Templars Dispute Resolution team previously highlighted some of the innovative provisions of the AMA including the provisions on third-party funding2 ; the adoption of a liberal definition of arbitration agreement and the acknowledgment of the advances in technology by recognizing agreements contained in an electronic communication as meeting the 'in writing' requirement3 ; the abolition of the error of law on the face of the award defence4 ; the resolution of the controversy surrounding the application of limitation laws to the enforcement of arbitral awards, etc.5
Other notable provisions of the AMA include the introduction of the concept of emergency arbitration which is gaining currency in the developed world, and which permits parties in need of urgent reliefs to apply to the national courts or the designated arbitral institutions for an emergency arbitrator prior to the constitution of the arbitral tribunal.
Another innovation in the AMA is the introduction of the mechanism of award review. What the AMA has done in this regard is to provide parties with the option of approaching an award review tribunal as an alternative to national courts, to review arbitral awards.
The AMA has also eliminated what was arguably the most controversial aspect of the 1988 Act by discarding the provisions of sections 4 and 5 of the 1998 Act and replacing the two sections with a new Section 5. Just like most major national arbitral legislations, the 1988 Act provided for the powers of the national courts to stay their proceedings in respect of a dispute which is the subject of an arbitration agreement. For reasons no one was able to rationalize for 35 years, the 1988 Act made provisions for this in two separate sections, sections 4 and 5. Predictably, this was a recipe for confusion that the courts continue to grapple with to date. Thankfully, the AMA has now settled that controversy by simply adopting the language of Article II (3) of the
What this means is that the conditions in section 5 of the 1988 Act for the grant of the stay of proceedings, including the requirement that the applicant must be ready and willing to do all things necessary to the proper conduct of the arbitration, which the courts elevated to onerous levels in a number of cases6 no longer form part of the new regime. This is also the case with the equally controversial phrase, "before taking any other step" which was the subject of judicial interpretation in many cases, which has also been discarded. It now remains to be seen how the courts will interpret these changes.
Case Law
Beijing Everyway Traffic and Lighting Tech Co v.
The 2023 arbitration year opened in
The dispute arose from a
In 2020, the Ghanian government informed Everyway that it had rescinded the contract and awarded the project to two other Chinese contractors,
In an award issued on
The same week,
The tribunal held a hearing on
Footnotes
1. [2023] EWHC 2638 (Comm)
2. See Breaking Barriers in Arbitration Funding: Third-Party Funding as a Risk Management tool under the Arbitration and Mediation Act 2023 | TEMPLARS Law (templars-law.com)
3. See Discussing the "New How" - Examining the "In Writing" Requirement for Arbitration Agreements Under the Arbitration and Mediation Act 2023 | TEMPLARS Law (templars-law.com)
4. Error of Law on the Face of the Award - the Arbitration and Mediation Act 2023 Comes to the Rescue | TEMPLARS Law (templars-law.com)
5. See Limitation Laws for Arbitral Award Enforcement in
6. See for instance The Owners of MV Lupex v
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Mr Adewale Atake
Templars
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Victoria Island Annexe
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