Thirty-four (34) years after the enactment of the Arbitration and Conciliation Act Chapter A.18, Laws of the Federation, 2004 which came into force on March 14, 1988, the 9th Nigerian Senate on Tuesday, 10 May 2022 passed the Arbitration and Mediation Bill (“the Bill”), which will repeal the Arbitration and Conciliation Act and enact the Arbitration and Mediation Act, 2022. The Bill which now awaits the assent of the President of the Federal Republic of Nigeria, has been greatly commended by arbitrations players and the entire arbitration community.
The Bill has introduced some innovations which before now, were hitherto lacking in the Arbitration and Conciliation Act. Nigeria and indeed the Nigerian commercial landscape was indeed long overdue for a legislation that would cater to the complex commercial terrain, especially in light of the fluid landscape of international arbitration, international trade and foreign investment.
Some notable innovations in the Bill include:
- Expressly codifies the recognition of foreign arbitral awards in Nigeria. The Bill recognizes and enforces the New York convention on foreign arbitration awards to any award made in Nigeria or any contracting state arising out of international commercial arbitration. The Bill also seeks the application of the Singapore convention on the international settlement agreements resulting from mediation.
- Section 40 of The Bill now allows for joinder of parties and clearly stipulates what such joinder should include, as well as the answer to same.
- Arbitration hearing can now continue/commence regardless of the commencement of an action in court.
- Electronic communication can now form an arbitration agreement if the information contained therein is accessible so as to be useable for subsequent reference.
- The Bill introduces the default option of a sole arbitrator where same is not specified or in the absence of agreement by parties.
- Emergency arbitration is permissible where a party seeks urgent relief.
- Provisions on the issuance of interim measures of protection by Courts expressly included as well as recognition and enforcement of interim orders made by a Tribunal.
- Introduces immunity for arbitrators.
- The juridical place of arbitration (seat) and the physical place of arbitration has now been given a succinct definition under the Bill.
- Introduces an Award Review Tribunal for the review of an arbitral award in the first instance.
- Section 39 of The Bill now allows for consolidation of arbitration hearings.
- Provides guidelines for the award of interest by a Tribunal where parties do not agree on interest.
- Costs of arbitration are expanded to include institution’s fees and third-party funding (the introduction of third-party funding would therefore legitimize third-party funding of arbitration in Nigeria).
- The Bill introduces legislative guidance on the award of interests by the Tribunal in an arbitral Award in the absence of an agreement of parties.
- The limitation period for enforcement of awards now excludes the period when the arbitration was ongoing. (This partly deals with the controversy about the time for enforcement of arbitral awards running from the accrual of the cause of action).
- Tribunals and arbitral institutions are expressly permitted to place a lien on final awards pending full payment of arbitrators’ fees and institutions’ expenses by the parties.
- Parties may agree to a review of the final arbitral award by an Award Review Tribunal, which shall endeavour to render its decision as an award within sixty (60) days from the date on which it is constituted.
- The default appointing authority is now the Regional Centre for International Commercial Arbitration, Lagos, Nigeria, in the absence of an agreement of parties.
- Part 2 of the Bill repeals the application of Conciliation as a mode of dispute settlement and replaces it with Mediation.
When finally assented to, the role and effect of this Bill cannot be overemphasized.
