. The backlash between these two mechanisms of dispute resolution has resulted in some measures to ensure that the two processes are severed and can run side-by-side without unnecessary interference. The general trend is towards limiting courts’ intervention to those cases where it is either necessary to support the arbitration process or where it is required by public policy. Howbeit, regardless of the attempts to free arbitration of all interventions by the courts, until the arbitral tribunal gains the coercive constitutional powers like the courts, arbitration remains ultimately dependent on the courts for assistance before, during and after proceedings. The Provision of Section 5 of the Model Law has been incorporated into Section 34 of the Arbitration and Conciliation Act ( ACA) Cap 18 LFN. This provision in my opinion was intended to have an international outlook. This position is evident in the commencement clause of the Act which provides thus “An Act to provide a unified legal framework for the fair and efficient settlement of commercial disputes by arbitration and conciliation and to make applicable the convention in the recognition and Enforcement of Arbitral Awards (New York Convention) to any award made in Nigeria or any other contracting state arising out of international commercial arbitration” . Pursuant to Article II(3) of the New York Convention which is also incorporated into the ACA requires the courts of a contracting state when seized of an action in matter in respect of which the parties have made an arbitration agreement, refer the parties to arbitration. Furthermore, pursuant to sSection 34 of the ACA, the courts are only permitted to intervene in arbitration in certain circumstances, including setting aside an arbitral award, staying proceedings, issuing subpoenas etc, but not a substantial interference with the arbitration proceedings that will halt the process such as anti-arbitration injunctions. Recent events with respect to the interpretation of the certain provision of ACA by the Nigerian Courts and arbitral tribunals including foreign arbitrators relying on Nigerian authorities have sprang up so much uncertainty as to whether the ACA is still fit for purpose giving the evolution of the process globally and the appreciable progress recorded in-country. These provisions includes inter alia party representation (whether domestic or international, ad hoc or institutional arbitration), arbitrability of certain disputes which has resulted to several pending litigation in court such as SNEPCO v FIRS in CA/A/208/2012 now reserved for judgment, more worrisome is the issue of Anti-arbitration injunction. Anti-arbitration injunctions are generally only granted where it is absolutely clear that the arbitration proceedings have been wrongly brought. By contrast, these measures should not be granted where it is simply more convenient to hear the case in court particularly in instances where third parties can be joined or the tribunal does not have the power to dispose of all issues in dispute. In such cases, the parties are bound by the arbitration agreement and the court should not interfere with it. What is more obtainable are injunctions intended to aid the arbitration process by restraining proceedings in court in breach of a valid arbitration agreement. Such injunctions are typical where there are concurrent court proceedings in another court as such proceedings could frustrate the ongoing arbitration. A judgment rendered may prevent the enforcement of the final award of the tribunal if its findings are irreconcilable with the award. Section 34 of ACA provides a context to the extent of court intervention. However, it has been contended on the flipside that the provision in itself tends to be seen as an ouster clause to the powers of the court under section 6(6)(C) of the Constitution. It has been contended also that there is a distinction between the general powers of the court in relation to arbitration as opposed to the specific powers of the court to issue injunctive orders. The attitude of the court has been simply to stay clear of the substantive process as opposed to those earlier mentioned. This was evident in the earlier cases of our superior courts in SAVOIA LTD v SONUBI (2000) 12 NWLR pt 682 pg 539 at 551 para E-H where the Supreme Court held in the passing “that the court has no jurisdiction to determine any matter, the subject of an arbitration proceedings”, ARBICO (NIG) LTD v NMT LTD (2002) 15 NWLR (Pt 789) 1 where such indications were reiterated. Subsequently in the case of STATOIL (NIG) LTD v N.N.P.C (2013) 14 NWLR pt 1373 Court of Appeal Lagos Division held categorically that “the intention of the legislature in making the provision in section 34 of the ACA is to protect the mechanism of arbitration and to prevent courts from having direct control over arbitral proceedings or to prevent the courts from intervening in arbitral proceedings outside the circumstances specified in the Act. In other words, the intention of the legislature is to make arbitral proceedings an alternative to adjudication before the courts, and not an extension of court proceedings. In the instance case the issuance of an ex-parte order of interim injunction was not permitted under the ACA”. This position has been the law only until recently, when an opportunity presented itself to the same Lagos Division of the Court of Appeal in CA/L/331/2015 SPDC v CRESTAR delivered on the 21st day of December 2015. Wherein the Court declined to be guided by the afore-cited decisions. The court held that with respect to section 34 of the ACA, it is important to note that the section is only applicable to matters which are “governed by the Act”, such that if it is found in any proceeding that the particular facts and circumstances are not within the purview of the ACA, the provisions of section 34 cannot apply with full force. In reaching this decision the court was guided by Emmanuel Gaillard in his text, ‘Anti-Suit Injunctions in International Arbitration’, Juris Publishing Inc., 2005, p. 111 where he stated that: “…It is important to point out that Article 5 of the Model Law, is only applicable if the arbitration is taking place where judicial intervention is sought; the prohibition on judicial intervention not provided for in the Model Law is therefore not applicable in connection with an arbitration taking place abroad or an arbitration the place of which has yet to be determined. This limit to the scope of Article 5…matters, because Courts in many common law jurisdictions construe their injunctive powers as also allowing them to enjoin foreign arbitral proceedings.” It is pertinent to state that the proceedings which was then sought to be restrained by the applicant in Crestar was an international arbitration with a seat in London with regards to several disputes arising from the SPA between the parties on both sides of the SPA for the Shell JV to assign its participating interest in Oil Mining Lease 25 (OML 25) to Crestar and PSC. On that premise, the Court then questioned whether the London arbitration in issue was governed by the provisions of Section 34 of the ACA, such that the Court had no jurisdiction to make an Order of injunction being sought by the applicant. In resolving the issue, the Court identified the fact that by virtue of the provisions of section 57(2)(b)(i) of the ACA, the arbitration in question in this case was an international arbitration, due to the fact that the place of arbitration was outside Nigeria, while the parties have their various places of business here. As a result, the Court held that, to the extent that the arbitration in question is an international arbitration, thus section 34 of the ACA and the judicial interpretation given to it in the cases of STATOIL AGIP v NNPC (supra) are inapplicable in this respect. It is the writer’s opinion that this development has far reaching effects and will create so much discomfort in the arbitration community. There is no gainsaying the fact that the Nigerian courts have enormous powers to restrain vexatious and oppressive proceedings owing to the doctrine of Lis Pendens. Likewise, the English Court will not hesitate to grant an injunction to restrain a party from continuing with parallel proceedings in breach of a valid arbitration clause in situations where damages are manifestly an inadequate remedy. This was the position taken by the Court of Appeal in Aggeliki Charris Compania Maritima Pagnan (The Angelic Grace) (1995) 1 Lloyds Rep 87, Albeit so, it is clear that the court does not use its discretion sparingly, certain factors must be considered which will be mentioned in the subsequent paragraph of this article. The writer concedes that understanding the cultural matrix of a contract resulting to the dispute up for resolution is essential in interpreting same, which was one of the justification given in the Crestar decision. However, the world being a global village has largely changed this perception. Courts have moved from strong skepticism resulting in extensive judicial intervention in foreign arbitration process or the non-enforcement of arbitration agreements to a position in favour of arbitration giving priority to party autonomy. The English law evolution on this subject matter is a typical example. The arbitration Act of 1950 vested the court with the power to require referral of any question of law thought ought to be decided by it. The case stated procedure could not be excluded. In light of strong international criticism the special case procedure was significantly curtailed by the Arbitration Act 1979, as a consequence any agreement of the parties on institutional rules, which contained a waiver of the right judicial recourse, such as the ICC or LCIA rules led to an exclusion of the case stated procedure. See the case of ANTAIOS COMPANIA NAVIERA SA v SALEN REDERIERNA AB (1984) 2 Lloyd’s Rep 235, 237. The Arbitration Act 1996 completely abolished the special case stated procedure. It allows appeal on questions of English law in very limited circumstances. One of the policies considered by the Court in the Crestar decision under review was the issue of illegality of the arbitration proceedings which was commenced by a foreign law firm, CLIFFORD CHANCE LLP contrary to Section 51(1) of the Local Content Act, which provides exclusive legal service to Nigerian lawyers in Nigeria oil and gas sector. In reaching its findings, the court considered the fact that the London arbitration was commenced during the pendency of the suit leading to the instant appeal (unlike the Statoil Case) and as at the time of the application for injunction the arbitral proceeding was at its preliminary stage, thereby considered it as vexatious, oppressive and unconscionable. This no doubt satisfies one of the factors courts consider in granting an injunction of this nature. See also the Australia decision in CSR Ltd v NZI (1994) 36 NSWLR, 138. However the position is slightly different in the US as the application is stricter, See the case of BHP PETROLEUM v BAER (1998) where the court referred to the test of applicable for anti-suit injunctions in support of court proceedings and considered it to be relevant also for injunctions in support of arbitration. Injunctions by their very nature are equitable discretionary remedies within the exclusive domain of the court, the writer will posit that the most consistent and relevant standard to be met is that of irreparable harm. My Follow-up question is that, in the Crestar decision what was the irreparable harm that compensation could not adequately remedy. This decision has obviously opened new vistas to our jurisprudence, and we await the Apex Court’s reasoning. By: MICHAEL NUMA This Day News]]>

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