HARMONIZING COMMERCIAL AND INVESTMENT ARBITRATION: CONFLICT DYNAMICS

Jaya Vasudevan

INTRODUCTION

This article provides an independent analysis of the scope and extent of arbitration under investment agreements, and the implications of the possible convergence in the process of harmonization of international commercial arbitration law. The successful settlement of any dispute depends on the compatibility of the nature of the dispute with the technique to which it is submitted for resolution. In the last decade, there was a constant increase in the number of disputes that were subjected to arbitration and a major chunk of those disputes covered a comparatively new but known area called international investment law. With economic globalization allowing the free flow of foreign direct investment (FDI) in and out of a country, the existing regulatory framework in international law to standardize investment liberalization is often seen as ineffective, hence the consequent disputes. Here, arbitration offers a suitable framework for the amicable settlement of commercial disputes covering investment agreements with the assistance of bilateral or multilateral agreements between the states. Preferential trade agreements pertaining to investment often contain an arbitration clause for the settlement of future disputes between parties. At this juncture, one may find that there exists a fundamental dilemma in ascertaining the true nature of investment arbitration and how it is different from commercial arbitration. For example, the protection being offered to human rights under the purview of investment arbitration may generate doubts in the minds of investment arbitrators. In commercial arbitration, divergences in a pluralistic order become particularly relevant whereas the diverse legal cultures supported by individual constitutional frameworks have a direct impact on investment arbitration due to their practical application. The article also discusses the need for harmonized rules governing arbitration procedures while maintaining the functional dissimilarities between commercial and investment arbitration.

Keywords: Investment; Arbitration; ADR;

DOI: https://dx.doi.org/10.4314/jsdlp.v12i2.6

Jaya Vasudevan, Humboldt Fellow (Heidelberg University), Associate Professor Centre for Postgraduate Legal Studies, TERI School of Advanced Studies, New Delhi-110070. Email: Jaya.vasudevan@terisas.ac.in

SEPARATING THE WHEAT FROM THE CHAFF: DELIMITING PUBLIC POLICY INFLUENCE ON THE ARBITRABILITY OF DISPUTES IN AFRICA

Akinwumi Ogunranti*

ABSTRACT

This article focuses on the arbitrability of disputes. It examines the recent global trend of delimiting the role of public policy in determining matters that should be subject to arbitration. The evaluation shows that the application of doctrines of separability and kompetenz-kompentenz plays a vital role in the delimitation process. However, notwithstanding the global trend to restrict the role of public policy in determining arbitrability, some countries in Africa still widely interpret public policy to revoke arbitral clause, stay arbitral proceedings, or refuse enforcement of foreign arbitral awards. They justify this approach on the basis that public policy is a means to protect national economic interest against foreign manipulation or exploitation. Anchored on Morgan’s theoretical approach, this article criticizes the excessive role of public policy in determining the arbitrability of disputes in Africa. It calls for a change to reflect the global trend through judicial activism and legislative reform. Although protecting national economic interest is an important goal, restricting matters that are arbitrable will not promote foreign investment. Therefore, countries in Africa must fashion arbitration practices that reflect their socio-economic background as well as contemporary arbitral trends around the world.

Keywords: Arbitration; Africa; Party Autonomy; Public Policy

DOI: https://dx.doi.org/10.4314/jsdlp.v10i1.6

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* Doctoral Student, Schulich School of Law, Dalhousie University, Halifax, Nova Scotia, Canada. Email: ak950986@dal.ca.

STAY OF PROCEEDINGS PENDING ARBITRATION: PROTECTING THE INTERESTS OF THIRD-PARTIES TO ARBITRATION IN NIGERIA

Taofeeq N. Alatise*

ABSTRACT

Courts have the power to stay proceedings pending arbitration. In Nigeria, the enabling statute regulating commercial arbitration is the Arbitration and Conciliation Act of 1988. Sections 4 and 5 of the Act contain two similar but conflicting provisions regulating the stay of proceedings. These sections of the law are a product of a common ground found in two different legislative texts. While section 4 leveraged on the provision of Uncitral Model Law on Arbitration, section 5 is influenced by Arbitration Act of 1914. This dichotomy between the histories of the two sections partly accounts for the controversies and difficulties in the interpretation and application by courts and scholars. This article examines the scope of sections 4 and 5 of the Act by identifying the real object of the law and the flaws in its current interpretation. The article considers the American experience, especially, the attitude of courts in granting a stay of proceedings and whether a stay can be granted in a suit against a non-party to the arbitration agreement. Unlike arbitration laws in the United States, one key gap in Nigerian arbitration law is its failure to contemplate stay of proceedings in a suit against a non-party to an arbitration agreement. In addition to identifying the need for urgent legal reforms that accommodate third-party stay pending arbitration, this article recommends that Nigerian courts, like their counterparts in developed jurisdictions, should adopt a more proactive approach by evolving innovative ways in deciding suits involving third parties to arbitration agreement and stay proceedings pending arbitration in appropriate cases to prevent parties from avoiding arbitration by suing a third-party, in line with the global best practices.

Keywords: Arbitration, Stay of Proceedings, Third Party.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.11

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* LL.M (Ilorin) Legal Practitioner based in Ilorin, Kwara State, Nigeria. Email: alatise.taofeeq@yahoo.com

CUSTOMARY ARBITRATION IN NIGERIA: A REVIEW OF EXTANT JUDICIAL PARAMETERS AND THE NEED FOR PARADIGM SHIFT

Muhammed Mustapha Akanbi*, Lukman Adebisi Abdulrauf**, and Abdulrazaq Adelodun Daibu***

ABSTRACT

Two forms of arbitration exist in present-day Nigeria; the first is indigenous to the various communities in the country and it is determined by the customs and traditions of the individual community. The second, which was imported, derives its source from the general laws and practice of England. The latter, which is arguably, alien to the culture and tradition of traditional Nigerian communities, has often been superimposed and applied by courts. The continuing subjugation of customary arbitration can be seen in the attitude of the Nigerian courts, whereby reliance is placed on the parameters of modern arbitration in the determination of a valid customary arbitration award in Nigeria. This article contends that the attitudes of courts in the determination of the binding nature of an award given under customary arbitration, using the parameters of modern arbitration, has caused considerable damage to the essence and potency of customary arbitration practice in Nigeria. In order to be authentic, it is contended that judicial development of customary arbitration, must respond to the traditions, attitudes and goals of the people whose society is under consideration. It should not be subject to a validity test by reference to orthodox arbitration or arbitration under the received English law. Consequently, the article examines the extant parameters to which the Nigerian courts subject the characteristics of customary arbitration in Nigeria. The article discusses the need for a paradigm shift in order for customary arbitration to respond to the exigencies of customs.

Keywords: Arbitration, custom, tradition, dispute resolution, English law, Nigeria.

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* LL.B (Ife), LL.M (Lagos), Ph.D. (KCL, London), BL; Professor of Law, Department of Business Law, Faculty of Law, University of Ilorin. Nigeria e-mail: laroungbe@yahoo.co.uk

** LL.B (Zaria), LL.M, (Ilorin) BL; Lecturer, Department of Public Law, Faculty of Law, University of Ilorin, Ilorin. Nigeria e-mail: lukmanrauf@gmail.com

*** LL.B, LL.M, (Ilorin) BL; Lecturer, Department of Private and Property Law, Faculty of Law, University of Ilorin, Ilorin, Nigeria: E-mail: abdulrazaqdaibu@yahoo.com

THE LEGAL FRAMEWORK FOR THE INSTITUTIONALISATION OF INTERNATIONAL COMMERCIAL ARBITRATION IN NIGERIA: A CRITICAL REVIEW

Oyeniyi O. Abe*

ABSTRACT

Considering the need to enhance commercial activities in Nigeria and the indisputable right of international parties to resolve disputes through arbitration, the desire for Nigeria to sign and ratify the New York Convention cannot be over emphasized. Unquestionably, the administration of justice through our regular courts is usually beleaguered with delays for diverse reasons. An attempt to combat these delays and ensure swifter dispensation of justice has seen the emergence of arbitration in its effective use in Nigeria. The need for speed, resulting in more efficiency and economy in contract drafting, has always dominated international commercial transactions. Thus, the need for resorting to arbitration is more compelling considering the lethargic attitude of Nigerian courts to the resolution of sophisticated commercial disputes. This paper seeks to examine the mechanisms through which there has been an implantation and implementation of international commercial arbitration legal regime in Nigeria. The work attempts a critical analysis of relevant extant laws in use in Nigeria and the effectiveness as well as efficiency of these laws. A detailed explication of the different international legal regime of commercial arbitration has been highlighted with the ultimate aim of adverting Nigerian as bedrock of sustainable resolution of commercial disputes through the instrumentality of arbitration in sub-Saharan Africa. The work thus queries the receptive nature of our national courts towards the enforcement of foreign arbitral award.

Keywords: International Commercial Arbitration, New York Convention, Enforcement, Nigeria.

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* Mr. O Abe teaches Commercial Law, Law of Contract and Alternative Dispute Resolution at the College of Law, Afe Babalola University, Ado Ekiti. He is also into private legal practice with a bias for arbitration and dispute resolution. Email: o.abe@abuad.edu.ng