Being presentation made by DR. SIJUADE KAYODE, ESQ., FICMC. (Vice President, Commerce ACCI) at the Award Writing Workshop for mentees of the NCC-DRC Second Series Mentorship Program on 15th September, 2022.
GENERAL OVERVIEW OF ARBITRATION
What is Arbitration?
It is a non-court alternative method of resolving disputes, where an arbitrator or panel of arbitrators is appointed by the parties to make a binding decision, from which there are very limited grounds of challenge. Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside conventional courts. It is a procedure in which a dispute is submitted, by agreement of parties, to one or more arbitrators who make a binding decision on the dispute. Arbitration may be either ad hoc (where the parties determine whatever rules they may consider appropriate for the arbitration) or administered (where the arbitration is conducted under the auspices of one of several arbitral organizations, such as: The Abuja Chamber of Commerce and Industry Dispute Resolution Centre (ACCI-DRC), International Centre for Dispute Resolution (ICDR) or The London Court of International Arbitration (LCIA)).
Generally, under the Arbitration and Conciliation Act, the parties have the autonomy to determine the conduct of the arbitral proceedings. However, for domestic arbitration, the rules in the schedule to the Arbitration and Conciliation Act are mandatory, including as follows:
- The arbitral tribunal must give adequate advance notice of the date, time and place of the hearings (Article 25 of the rules).
- The award or any decision made by a tribunal consisting of three members must be made by the majority (Article 31 of the rules).
- The award must be made in writing and, unless otherwise agreed by the parties, state the reasons on which the decision is based (Article 32 of the rules).
- Arbitral proceedings conclude when the arbitral tribunal renders the award.
It is the Arbitrators’ primary duty to render an enforceable award.
An arbitral award can be described as a decision of the arbitral tribunal on the substance of the dispute and includes any final, interim or partial award and any award on costs or interest but does not include interlocutory orders. The principal legislation that governs arbitration in Nigeria is the Arbitration and Conciliation Act 1988 Cap A18, Laws of the Federation of Nigeria 2004 (ACA). The ACA was modeled after the United Nations Commission on International Trade Law (UNCITRAL) model law. Section 31 of the ACA makes provision for the recognition and enforcement of arbitral awards.
The UNCITRAL also provides necessary guidance for the treatment and operation of arbitral awards, through its model law on International Commercial Arbitration 1985 (with amendments as adopted in 2006). Article 35 of the Model Law, provides that, “An arbitral award, irrespective of the country in which it was made, shall be recognized as binding and, upon application in writing to the competent court, shall be enforced subject to the provisions of this article and of article 36”.
SOURCES OF AN ARBITRAL AWARD
An Arbitral award is usually determined by the arbitration agreement and the applicable lex arbitri. The arbitral award may stem either from the following:
- The applicable Arbitration Law (lex arbitri),
- The Parties’ Arbitration Agreement or
- The institutional arbitration rules that parties choose to be applicable.
If the award does not meet such procedural requirements, it may be subject to annulment.
ELEMENTS OF AN ARBITRAL AWARD
The arbitral award in general should be in a written form (Article 31 (1) UNCITRAL Model Law), however there are exceptions to this principle, e.g. in England, the parties may agree on the form of an award. The award should also stipulate the place/seat of arbitration. The award must be dated ( Article 31 (3) of the UNCITRAL Model Law). It should, in principle, state the reasons upon which it is based (Article 31 (1) UNCITRAL Model Law). The arbitral award should be drafted in the agreed language of the arbitral proceedings. It should bear the arbitrators’ signatures – in most legal systems, all arbitrators need to sign the award. Rules specify the effects of failure to gather all signatures.
TYPES OF ARBITRAL AWARD
There are several types of awards viz; Final, Partial, Interim, Preliminary, Additional, Consent, and Default.
The type of award should be indicated to determine whether the tribunal’s decision is in fact an award or simply a procedural order. The arbitral tribunal’s decision on jurisdiction constitutes an award.
CONTENT OF ARBITRAL AWARD
There are several information that the arbitral award should include, however, most of them are not mandatory:
- Type of Award– the type of award should be indicated to determine whether the tribunal’s decision is in fact an award or simply a procedural order.
- The Names and Addressesof the parties, of their representatives, the arbitrators, and the secretary of the arbitral tribunal, if applicable;
- The Full Text of the Arbitration Agreement– it shows the basis for the arbitral tribunal’s jurisdiction to hear and resolve the case; if the tribunal’s jurisdiction had been challenged by one of the parties, this section should also consist of information on the resolution of such challenge;
- Applicable law– law applicable to the arbitration agreement the applicable substantive law and procedural law.
- The procedural History– the purpose of this section is to establish that the proceedings were conducted in a proper manner and each party had an equal opportunity to present its case; it shall consist of information on the constitution of the arbitral tribunal, on the seat of arbitration, on eventual challenges to the arbitrators, on parties’ submissions and briefs throughout the proceedings, and the date and the course of the hearing, the date of closing of proceedings;
- Parties’ Requests for Relief– this section shall indicate parties’ requests and claims (i.e. monetary relief, specific performance, declaratory relief, injunctive relief), counter-claims, including any amendments, withdrawals or waivers of any claims, if any;
- Factual summary– this section should contain a summary of the relevant facts of the case and information whether a given circumstance is agreed or disputed between the parties; if a certain factual circumstance is disputed between the parties, the arbitral tribunal should provide the reasoning and evidence it relied upon in establishing such circumstance;
- Summary of Parties’ Arguments– this section should consist of a (rather brief) summary of parties’ standing with regard to the relevant key issues in the case; it may be structured on an issue-by-issue basis;
- Reasoning and Findings(see also Motivation) – the arbitral award’s reasoning is the most important part of the award (the heart of the arbitral award), required usually by both the applicable arbitration law and institutional arbitration rules. Parties may jointly request the tribunal to issue a decision without the reasoning;
- Operative Part– In this section, the arbitral tribunal determines its decision with respect to the parties’ requests and claims; if the arbitral tribunal decided to award compensation or any other form of pecuniary relief, it should clearly specify the amount, the currency, the beneficiary of the payment alongside the information on taxes and interest;
- Award on costs– the tribunal should determine who, and to what extent, bears the costs of the proceedings.
VALIDITY OF ARBITRAL AWARDS
An arbitral award is final and cannot be appealed in Nigeria. The purport of this is that the substantive issues which the arbitral panel determined will not be subject of review by the courts because arbitration, by its nature is final. Therefore, to set aside an arbitral award, is to invalidate the award. A dissatisfied party can actively seek a declaration that the award is set aside under certain limited circumstances. Sections 29, 30 and 48 of the ACA states the instances where a party can apply to set aside an arbitral award. Section 30 (1) of the Arbitration and Conciliation Act Cap A19 LFN 1990 (ACA) empowers any party to Arbitration to challenge an Arbitral award to be set aside on grounds of misconduct on the part of the Arbitrator or where the arbitral proceedings, or award, has been improperly procured but the ACA does not define the meaning of ‘misconduct’.
The Supreme Court in K.S.U.D.B V. Fanz Limited (1990) 4 NWLR (Part 142) 1 at 43 on the power of the court to set aside an award held thus:
“Parties take their arbitrator for better or worse both as to decision of fact and decision of law. However, by virtue of the provisions of Section 12 (2) of the Arbitration Law, where an arbitrator or umpire has misconducted himself or an arbitration or award has been improperly procured, the court has the power to set aside the award.“
Nigerian Courts have consequently given their various interpretation of what amounts to misconduct of an arbitrator over time because of this lacuna. Section 48 also contains a list of grounds for an application to set aside an arbitral award. It is also important to note that an application to set aside an arbitral award in Nigeria is time bound, Section 29 of the Arbitration and Conciliation Act provides that an aggrieved party may bring an application within three months from the date of the award.
For international arbitrations, no appeal is allowed but an application to set aside the award can be made. Appeal and setting aside procedures are initiated before the Court of Appeal of the seat of arbitration within one month as of the notification of the arbitral award but can be extended by two months when the party is located abroad.
The filing of the appeal or the setting aside procedure suspends the enforcement of the decision in domestic arbitrations but doesn’t suspend enforcement for international arbitration.
The grounds and procedure for setting aside a domestic arbitral award are:
- Arbitral tribunal declared itself wrongly competent or incompetent.
- Arbitral tribunal was irregularly constituted.
- Arbitral tribunal has ruled on the matter contrary to the given assignment.
- Adversarial principle has not been respected.
- Arbitral award is contrary to public policy.
- Arbitral award is not grounded or does not state the date on which it has been rendered or the name of the arbitrator(s) or does not include the required signature(s) or was not rendered by a majority vote.
- The setting aside of arbitral awards remains important as it gives the unsuccessful party an avenue for redress when an erroneous award is given.
It is recommended that parties select Arbitrators who are experts in the area of dispute and also knowledgeable on the rules and laws binding the arbitral proceeding and follow same to ensure sound Arbitral awards are delivered that will be virtually impossible to challenge or set aside.