How to enforce foreign arbitral awards in Nigeria — Experts

The programme, which was facilitated by international arbitration firm, Shearman & Sterling LLP, pooled together leading Nigerian professionals including Mrs. Funke Adekoya (SAN) of Aelex law firm; Mr. Adewale Atake of Templars; Mr. Isaiah Bozimo of Broderick Bozimo and Co.; and Mr. Hamid Abdulkareem of Aluko & Oyebode, as speakers. Founder of Shearman & Sterling LLP, which has offices in 11 countries, Prof. Emmanuel Gaillard, set the tone for the discussion, tagged, “Current practice under the New York Convention.” The French Law professor explained that the New York Convention was put together to facilitate the recognition and enforcement of foreign arbitral awards in member countries. He described the convention as “the the most important and successful United Nations treaty in the area of international trade law and the cornerstone of the international arbitration system.” The don said, “The convention’s principal aim is to oblige state partners to ensure non-discrimination of foreign and non-domestic arbitral awards, such that these awards are recognised and are generally capable of enforcement in their jurisdiction in the same way as domestic awards.” Adekoya, in her presentation, pointed out that the Nigeria’s Arbitration and Conciliation Act recognised the New York Convention, formally called the Convention on the Recognition and Enforcement of Foreign Awards, in its Section 54(1). But she said as the Nigerian legal system is procedural, the success of enforcement of foreign awards is essentially hinged on the mastery of the court procedural rules. Adekoya said, “Nigerian courts take procedural requirements seriously, as it is a common position of the courts that procedural rules aid the proceedings of the court and are meant to be obeyed. “It is, therefore, important that any party requiring the recognition and enforcement of a foreign arbitral award be aware of the national procedural rules that will apply to its award.” Taking the discussion further, Atake, who examined the disposition of Nigerian courts to Article II(3) of the New York Convention, which encourages courts in member states to refer arbitrable cases to arbitration, concluded that Nigerian courts “have not fared badly.” He, however, said there were lacunae which must be bridged in the country’s Arbitration and Conciliatory Act, to put Nigeria on a competitive footing with leading arbitration-friendly countries. He said, “If Nigeria must be regarded as pro-arbitration, comparative to other more liberal jurisdictions like France, there is a need to make some legislative reforms to the ACA. “Particularly, Section 5(2), which places the burden on the party seeking to enforce the arbitration agreement to demonstrate its willingness to arbitrate the dispute before the court can refer the parties to arbitration, should be amended.” Bozimo, in his presentation, stressed that more must be done to enhance Nigeria’s rating in the comity of arbitration-friendly countries. He made reference to the 2016 ICC Dispute Resolution Statistics, where out of 187 arbitration cases involving African parties, only one was resolved in Nigeria. He listed factors that influence the choice of arbitral seat, which Nigeria must pay attention to, to include track record for enforcement of arbitration agreements and awards; neutral and impartial legal system, with up-to-date arbitration laws; availability of specialised lawyers and arbitrators familiar with the seat; and modern hearing facilities. Abdulkareem, on his own part, observed that the application of the New York Convention has yet to be well documented in Nigeria. He, however, said there were a number of court decisions, which tally with the provisions of the convention.]]>