The Approach Of Nigerian Courts To International Commercial Arbitration: The Need For A Paradigm Shift In Judicial Thinking By Victor Obinna Chukwuma Esq.

Abstract: International commercial arbitration is increasingly becoming the best method of settling international commercial disputes.

Chief among the reasons why commercial disputants opt for international arbitration include its inherent advantages such as neutrality, privacy and confidentiality, speed, cost-effectiveness, procedural flexibility and the universal enforceability of the awards, to mention but a few. Due to the incidence of globalization, the promotion of international arbitration is now the quintessential tactics to attract foreign investment since it is relatively cost-cutting and can be tailored by the parties to suit their business interests.

Although in international arbitration, the courts have minimal roles to play, judicial assistance to arbitration is fundamental and cannot be ruled out. A positive and supportive judicial approach to arbitration will go a longer way to increase the growth international arbitration and vice versa. This research work briefly criticizes the approach of the Nigerian courts in some selected cases and argues for a paradigm shift in the approach of the courts to the issues canvassed in those cases such as stay of proceedings, anti-arbitration injunctions, limitation of time, etc. This research concludes by stating that an arbitration-friendly approach to those issues is paramount in order to make Nigeria a pro-arbitration country and to attract foreign investment.[1]

Keywords: International commercial arbitration, Nigerian courts, judicial approach.

1. What is International Commercial Arbitration?

Arbitration, according to Born G. B refers to the process by which parties consensually submit a dispute to a non-governmental decision maker, selected by or for the parties, who renders a binding decision finally resolving the dispute in accordance with neutral adjudicative procedures affording the parties an opportunity to be heard.[2] The UNCITRAL Model Law provides that arbitration is international if:[3]

1. the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states; or
2. one of the following places is situated outside the State in which the parties have their places of business:
3. the place of arbitration if determined in, or pursuant to, the arbitration agreement
4. any place where a substantial part of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or
5. the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country.

Section 57 (2) of the Arbitration and Conciliation Act adopts the above definition of international arbitration but provides in addition that arbitration is international where the parties, despite the nature of the contract, expressly agree that any dispute arising from the commercial transaction shall be treated as an international arbitration.[4] Therefore, international arbitration is not tied only to cases where parties are from two different countries. Section 57 (2) (d) of ACA has broadened the scope by enabling the parties notwithstanding the nature of the contract to decide whether or not the arbitration should be treated as international. This intention may be implied from the content of the arbitral clause especially where the parties have provided for the application of international laws. Similarly, the commercial scope of international arbitration is quite vast as it covers matters arising from all relationships of commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods and services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investing; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, or road.[5] If one ignores its tautologies and redundancies, this footnote conveys the idea that all exchanges of property, services or assets will be commercial. In other words, the definition includes all economic relations the object of which is the production, transformation or circulation of goods, services associated with those goods, financial and banking activities.[6]

1. Why International Commercial Arbitration is Important:

The increased choice of commercial disputants for international arbitration traces to several significant advantages. First, international arbitration guarantees a neutral forum in which case the dispute is not subjected to the home court of one of the parties.[7] As Redfern A and Hunter M rightly noted: “it is plainly more attractive to set up a carefully chosen tribunal of experienced arbitrators, with knowledge of the language and commercial intentions of the disputed contract, who will sit in a neutral country and do their best to carry out the reasonable expectations of the parties, than to entrust the resolution of the dispute to an unknown and perhaps commercially inexperienced foreign court, with its own particular, national procedural rules and regulations.”[8] The second advantage why international arbitration is important is that it offers procedural flexibility. In this connection, parties enjoy the latitude to tailor-make or shape the arbitral process in a way suitable to their private or business interests. Pursuant to this procedural flexibility, parties enjoy the following rights: freedom to choose arbitrators of their choice, freedom to determine the laws and rules applicable to the arbitration, freedom to choose the place of arbitration, freedom to choose the language of the arbitration. Another advantage which is a sequel to the procedural flexibility enjoyed in international arbitration is that persons who are experts and knowledgeable in the relevant field of dispute are usually appointed as arbitrators. In comparing this advantage with what obtains often times in litigation, Born G.B states that: “it is harsh, but undeniable fact that some national courts are distressingly inappropriate choices for resolving international commercial disputes. In some states, local courts have little experience or training in resolving international transactions or disputes and can face serious difficulties in fully apprehending the business context and terms of the parties’ dispute.”[9] Furthermore, unlike litigation where hearings are generally held in the public, arbitral proceedings are generally private unless otherwise agreed by the parties.[10] Although there exists no duty of confidentiality on the parties, they are free to enter into a confidentiality agreement which will augment the statutory requirement of privacy of the arbitral proceedings. Yet another reason why international arbitration is important is that its awards are universally enforceable under international conventions such as the New York Convention.[11] In this connection, the winner of an international arbitration award can approach the courts of any member country where the other party is perceived to have assets for the purposes of enforcing the award. There are other advantages of international arbitration such as cost-effectiveness and time-efficiency. What is left to say is that in view of the above advantages, foreign investors will usually prefer to invest in pro-arbitration countries, as opposed to countries where arbitration is not promoted. This is because, apart from element of neutrality and other advantages of international arbitration, businessmen place much importance on the continuation of their commercial relationship and the need for a speedy determination of their disputes so that they can get on with their business.[12] Simply put, therefore, while the promotion of international arbitration will attract and keep foreign investors, an anti-arbitration country will certainly record little or no foreign investment which stunts the growth of the economic sector.

1. The Role of the Courts in International Arbitration:

Generally, the principle of party autonomy in international arbitration connotes minimal participation of the courts in matters relating to the arbitration proceedings. In other words, it is the parties that determine who their adjudicator should be and the applicable procedure to be followed. To this end, most arbitration laws specifically make provisions prohibiting the intervention of courts in arbitration except in few circumstances provided by statute.[13] However, it does not follow fundamentally that the judiciary has no role to play in international arbitration. Court assistance is, in fact, fundamental to international commercial arbitration in that it ensures the due process and fairness of arbitral proceedings and fills in the blanks in arbitration agreements.[14] Apart from the issue of ensuring fairness, Bantekas L justifies a compulsory relationship between arbitration and the courts on the fact that since the arbitrator’s authority is contractual, non-parties (such as witnesses and experts, e.t.c) are not bound by his orders and thus may require an injunction from the court to compel their compliance.[15] The following are some of the cases where the courts may come in:

1. Reference to arbitration of a matter which is subject to a valid arbitration agreement and the grant of stay of proceedings.[16]
2. Appointment of the arbitral tribunal upon the failure of the parties to so agree. It must be emphasized that apart from the condition that the parties must have failed to agree on the appointment or that the appointment procedure agreed to by the parties have failed, the court’s power to appoint the tribunal cannot be exercised suo motu. It must be based on the application of any of the parties.[17]

• Issuance of orders compelling the attendance of witnesses before the arbitral tribunal.[18]

1. Entertainment of applications challenging an arbitrator and the removal of the arbitrator on grounds of misconduct.[19]
2. Issuance of interim preservative orders pending the determination of the arbitration in order to facilitate the smooth conduct of the arbitration, or to preserve the status quo of the dispute.[20]
3. Enforcement and recognition of arbitral awards.

• Entertainment of applications for the setting aside of arbitral awards.[21]

There may be other roles for the courts in international arbitration but what matters most is the approach of the courts to arbitration in the enforcement of these roles. The role of the courts in international arbitration is generally supportive rather than interventionist. Therefore, the proper approach will be to appreciate the importance of international arbitration and to promote the primacy of arbitration agreements. The court in the case of Benjamin v. Kalio,[22] captured this approach in the following words:

Where a party repudiates and resiles from the decision of arbitration he voluntarily submitted himself to, the conduct should be regarded as arbitrary, unconscionable and reprehensible for purpose of assessing awarded damages. Public policy, which favours end to litigation seriously disapproves and condemns such conduct. Ordinarily the conduct of the party should attract exemplary and aggravated damages.

Although the court in the above case was dealing with customary arbitration, there exists no basis why the same approach should not apply to international arbitration as well. There is no basis why international arbitration should be seen as that monster that robs the court of its jurisdiction to decide matters affecting its citizens. It is settled law that an arbitration clause does not seek to oust the jurisdiction of a court as all it does is to allow the parties the avenue and possibilities of settling disputes amicably out of court.[23] However, what the courts seeks to achieve by holding that an arbitration clause does not oust its jurisdiction is paramount in determining whether the approach of the court is “pro-arbitration” or “anti-arbitration.” A decision of the court that an arbitral clause does not oust its jurisdiction will be deemed “pro-arbitration” where it intends to protect the arbitration agreement against any adverse legal provision like section 20 of the Admiralty Jurisdiction Act[24] that renders null and void, any agreement per se which seeks to oust the jurisdiction of the court. On the other hand, such a decision will be anti-arbitration where it seeks to encourage any of the parties to litigate a matter which is subject to an arbitration agreement and to imply the readiness of the court to entertain such claims. For instance, in the case of Obembe v. Wemabod Estates Ltd,[25] after the court noted that an arbitration clause does not oust its jurisdiction, it went ahead to hold as a sequel, that: “Therefore, each of the parties may before submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission.”[26] The fact that an arbitration clause does not oust the jurisdiction of the court does not mean that the courts should be willing to hear a claim brought in violation of a valid arbitration agreement or a pending arbitral proceedings. In such cases, the proper approach should be, not necessarily dismissing the claim for want of jurisdiction, but freezing the action and referring the parties to arbitration. The mere fact that a dispute is of a nature eminently suitable for trial in a court is not a ground for refusing to give effect to what the parties have, by contract, expressly agreed to.[27]

1. A Succinct Critique of the Approach of Nigerian Courts in Some Selected Cases:
2. Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corp. Plc[28]

In this case, clause 7 of the Memorandum of Understanding between the parties provided that any dispute arising therefrom may be resolved in accordance with the provisions of the Arbitration and Conciliation Act. When a dispute arose between the parties, the appellant on the 26^th May 2014 ignored the arbitration clause and went to court. Upon being served with the summons, the respondent entered a conditional appearance to the suit and filed a preliminary objection (dated 26^th August 2014) to the jurisdiction of the court on the ground that the appellant had ignored clause 7 of their MOU. On the 3^rd September 2014, the appellant filed a counter affidavit and written address in opposition to the preliminary objection. On the 24^th November 2014, the respondent further filed his counter affidavit and written address in opposition to the originating summons. After hearing the preliminary objection and originating summons together, the trial court upheld the preliminary objection and referred the matter to arbitration. The appellant was dissatisfied and appealed to the court of Appeal. The gravamen of the appellant’s grouse was that by subsequently filing processes in respect of the substantive originating summons, the respondent had taken steps within the meaning of section 5 of the Arbitration and Conciliation Act and therefore cannot apply for a stay. The respondent stated that he merely filed the processes in obedience to the trial judge’s order. After hearing the parties, the appeal court allowed the appeal but held that the respondent’s filing of processes in respect of the substantive originating summons did not amount to taking steps in the proceeding and will not prevent him from applying for stay. The appeal court refused to refer the parties to arbitration on the grounds that the respondent did not meet some other requirements for a stay of proceedings to be granted. The court held that the word “may” in the arbitral clause is optional or directory rather than compulsory and that it does not impose on any of the parties the obligation to resort to arbitration. The court however refused to hear the originating summons on the merits but remitted same back to the trial court for trial. The appellant was not satisfied with the decision of the appeal court not to hear the matter on the merits, hence it appealed to the Supreme Court. The apex court dismissed the appeal but held that the appeal court erred when it held that the respondent’s subsequent filing of processes in respect of the originating summons did not amount to taking steps in the proceedings and thereby waiving its rights. The apex court refused to accept the argument of the respondent that he merely filed those processes on the directive of the trial judge. The arbitration proceedings could not therefore commence as the matter was remitted to the trial court for commencement of trial.

The approach of the trial court, the court of appeal and the supreme court in this case is somewhat strict. For instance, the trial court ought not to have heard the preliminary objection and the originating summons together. This is because such procedure creates room for delay and may lead to issues during appeal, as we have seen in the present case, where the party objecting to the action may be deemed to have waived his rights to arbitrate. The court of appeal found that the respondent had not taken any steps in the proceedings but still refused to order for a stay of proceedings. It also went ahead to hold that the appearance of the word “may” in the arbitral clause meant that the arbitration was not compulsory. The supreme court strictly interpreted the issue of taking steps even though there was evidence that the respondent’s preliminary objection was filed before he took any other step in the proceedings. Although the provision of “any other steps in the proceedings” as contained in section 5 of the ACA is arguably a loophole against arbitration, the approach of the court in interpreting that provision should be in favour of arbitration given that section 4 of the ACA actually places a duty on the court to refer such matters to arbitration. A pro-arbitration court therefore will not usually rely on statutory loopholes or misfortune of one of the parties to avoid its duty under the law.

1. Shell Petroleum Development Company of Nigeria v. Crestar Integrated Natural Resources Limited.[29]

In this case, the respondent applications challenging the jurisdiction of the federal high court and asking for a stay of proceeding based on the arbitration agreement of the parties were both dismissed at the federal high court and the respondent appealed to the court of appeal. At the Court of Appeal, the applicant applied for an order of injunction restraining the respondents whether by themselves, their management, servants, agents, privies, proxies, representatives, nominees or solicitors or any other person howsoever called acting under or pursuant to their authority from proceeding or continuing with or taking any further steps in the arbitration proceedings with International Court of Arbitration  (ICC No. 21012/TO) between the respondents and the applicants which was commenced by the respondents vide a request for arbitration dated 20^th April, 2015 and issued by the respondent, pending the final determination of the respondent’s appeal. The issue was whether the court of appeal has the jurisdiction to issue an anti-arbitration injunction as sought by the applicants. The court proceeded by considering the provisions of sections 34 and 57 (2) of the Arbitration and Conciliation Act. It is noted that by section 34 of ACA, the court shall not intervene in any matter governed by the Act except where so provided in the Act. After considering the provision of section 52 (2) (b) (i) of the ACA, the appeal court held that that the instant arbitration was an international arbitration since the place of arbitration was situated outside Nigeria (London) where the parties have their places of business. Having found that the arbitration was international, the appeal court suddenly held that the effect was that the provisions of section 34 of the ACA will not apply to the instant case. In other words, the appeal court held that it was not bound by the statutory provision prohibiting the intervention of courts in arbitration since the arbitration was not a domestic arbitration. Justifying its stance, the appeal court considered section 58 of ACA which provides that the Act is to apply throughout the federation of Nigeria and held as a sequel that the provisions of the Act is only applicable in respect of arbitrations which are domestic in the country. Relying on the inherent power of the court to grant injunctions in cases where it considers just and convenient (as contained in section 13 of the Federal High Court Act), the court granted the anti-arbitration injunction on grounds inter alia that the applicant’s affidavit showed that it would be oppressive, vexatious or unconscionable to allow the arbitral proceedings to continue.

While we await the view of the Nigerian Supreme Court in relation to the above case, it is submitted, with due respect, that the approach of the court of appeal is strict and anti-arbitration. There is no basis to justify an assertion which states that the Nigerian Arbitration and Conciliation Act does not apply to international arbitration. By clearly defining international arbitration in section 57 (2), providing for the application of international arbitration rules in section 53 and adopting the New York Convention in section 54, the Act does envisage and apply to international arbitration. In any case, it is not appropriate to rely on statutory loopholes to deny a party a generally recognized right.

• Zenith Global Merchant Limited v. Zhongfu International Investment (Nig.) FZE & 2 Ors[30]

In this case, the High Court relied on the Court of Appeal’s decision in Shell v. Crestar[31] to issue an anti-arbitration injunction restraining the parties from seeking and or continuing with any step, action and or participating directly or indirectly in the arbitral proceedings at the Singapore International Court of Arbitration. However, in this case, it must be pointed out that it was the party challenging the anti-arbitration injunction that first instituted the action in the High Court. Midway into the proceedings at the High Court, the claimant suddenly sought to withdraw the action so as to proceed to arbitration in Singapore in line with an existing arbitral clause binding the parties to that effect. The high court did not only reject the application but went ahead to make an order restraining the commencement of the arbitration. It is submitted that the claimant’s conduct by instituting the action only constitutes a ground for refusal of stay of proceedings in keeping with section 5 of the ACA. The section does not provide that the court should in addition to refusing stay, where the party has taken steps in the proceedings, make an order restraining the commencement of the arbitration. It is no wonder, therefore, that the court looked away from that section when it sought determine its power to grant the anti-arbitration injunction. In line with Crestar’s case, it rather invoked the provisions of section 13 of the Federal High Court Act which empowers the federal high court to issue injunctions in circumstances where such orders appear to the court to be just and convenient. Relying on Crestar’s case above, the court listed two conditions upon which it will issue an anti-arbitration injunction:

1. the applicant shows that the continuance of the foreign arbitration will be oppressive or vexatious and cause injustice; and
2. the injunction must not cause injustice to the other party

Although the court did not state any parameters for determining whether or not an anti-arbitration injunction will cause injustice to the other party, one wonders what injustice is greater than court assistance to a party in defaulting a valid arbitration clause. In the same vein, granting an anti-arbitration injunction on grounds other than lack of jurisdiction of the arbitrator is not fancied in international arbitration.[32] Self-restraint by the courts in dealing with applications for anti-arbitration injunction is the ideal approach. . For instance, in the case of Mitsu Engineering and Ship Building Co. Ltd v Easton Graham Rush,[33] a court in Singapore held that it had no power to grant an anti-arbitration restraining an arbitrator from proceeding with the arbitral proceedings, but that it could set the award aside if circumstances warranted.

1. Obembe v. Wemabod Estates Limited[34]

This is a famous case usually cited by Nigerian courts when dealing with arbitration cases especially as it relates to issues of stay of proceedings, arbitration clauses and the court’s jurisdiction. In this case, the plaintiff instituted an action before the Lagos State High Court in breach of a valid arbitration clause. The defendant also filed his defence to the action and did not apply for a stay of proceedings. The learned trial judge found that the plaintiff did not prove his case and therefore dismissed the case. The judge further observed as follows: “Had I been in a position on the facts to find any of the plaintiff’s claims proved I would have been unable to enter judgment in his favour in view of the Arbitration Clauses 17 in part 11 of Ex. 3 at page 37 which parties had agreed would govern their contract.” The case went up to the supreme court were the appeal was partially allowed. The supreme court attacked the decision of the trial judge where it held that it would have been unable to give judgment in favour of the plaintiff, in view of the existing arbitration clause, even if the plaintiff’s claims were proved. The supreme court’s view was based on the fact that the defendant had taken steps in the proceedings and did not apply for stay. However, the supreme court stated that: “In order to get a stay, a party to submission must have taken no step in the proceedings. Any party who makes any application whatsoever to the court, even though it be merely for application for extension of time, takes step in the proceedings.” Although the conduct of the parties particularly the defendant suggests a waiver of the right to arbitrate, the supreme court went too far when it laid down the principle that a party applying for a stay must have taken no step at all in the proceedings and that mere application for extension of time constitutes a step. In the Singapore case of Australian Timber Products Ltd v. Koh Brothers Building & Civil Engineering Contractor Ltd,[35] it was suggested that a step in the proceedings is one which impliedly affirms the correctness of the court proceedings and the willingness of the defendant to submit to a determination of the courts of law instead of arbitration. It was held that an application to extend time to file a defence pending determination of stay application is not a step in the action.

Another principle which laid down in this case is division of arbitration clauses into mandatory and non-mandatory arbitration clauses. The court held that the non-mandatory class is where the provision for arbitration is a mere matter of procedure for ascertaining the rights of the parties with nothing in it to exclude a right of action on the contract itself, but leaving it to the party against whom an action may be brought to apply to the discretionary power of the court to stay the proceedings so that the parties may resort to that procedure to which they have agreed. On the other hand, the mandatory class is where arbitration followed by an award is condition precedent to any other proceedings being taken. This classification is not obtainable in international arbitration as it undermines the mandatory nature of an arbitration agreement. The generally known classification of an arbitration clause is the one which classifies arbitration agreements into submission agreements and arbitration clauses.[36] Classifying arbitration agreements into mandatory and non-mandatory clauses undermines the hallowed principle of separability whereby the arbitration clause is understood to be self-existent and independent of the main contract.[37] Furthermore, although many Nigerian courts have been endorsing the classification in Obembe’s case,[38] the courts seem not to have provided any parameters for determining when a clause is mandatory or non-mandatory. In Transcoe Shipping v. MT Sea Sterling,[39] for instance, relying on the above classification, the court of appeal sought to determine whether the following clause fell within the mandatory arbitration clause:

This Agreement shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this agreement shall be referred to arbitration in London in accordance with the Arbitration Act of 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this clause.

After considering the above clause, the court of appeal found that the clause is a matter of procedure and does not come within the mandatory arbitration clause. This conclusion is rather strange. The proper approach is to view valid arbitration clauses as contractually mandatory and binding on the parties. Accepting actions brought in breach of arbitration clauses, on the mere grounds that the clause is not mandatory, is tantamount stricto sensu to judicial aiding and abetting of the breach of contracts by parties.

1. City Eng. (Nig.) Ltd v. Federal Housing Authority[40]

In this case, the supreme court per Ogundare, J.S.C (delivering the leading judgment) held that the limitation period for enforcing an award begins to run from the date of the original cause of action on the basis of which parties went to arbitration and not from the date of the award. The approach of the court in this case is clearly inimical to the growth of arbitration. It has the effect of forcing the parties to approach the court for a stay of the proceedings before proceeding to arbitration. It also has the effect of denying the winner of an award of not only the fruits of the award but his entire right to enforce his claim. Happily, section 35 of the Lagos State Arbitration Law now provides that in computing the time for the commencement of proceedings to enforce an award, the period between the commencement of arbitration and the date of the award shall be excluded.

1. Process & Industrial Developments Ltd v. Federal Republic of Nigeria[41]

This is the popular case where the huge sum of 9.6 billion dollars was awarded in damages against Nigeria for a breach of contract. The discussion of this case will be streamlined to the purpose of this work and the approach of the Nigerian court at the early stage of the arbitration. It may be wondered whether the Nigerian court played any role in this case since the bulk of the issues were determined by the arbitral tribunal and the English court. However, the facts of the case reveal that after the tribunal found Nigeria liable for breach of contract, but before it could proceed to the next stage of determining the quantum of damages, the Nigerian party did approach both the English and Nigerian courts to set aside the liability award. While the English refused to accede to Nigeria’s request, the Nigerian Federal High Court granted the request and further issued an anti-arbitration injunction restraining the continuation and completion of the arbitral proceedings. Perhaps it was this decision of the federal high court that inspired the Nigerian party to ignore the subsequent proceedings in the arbitration. Although, contrary to the views of the arbitral tribunal and the English court, the Nigerian court may arguably be the court with primary jurisdiction over the arbitration, the court should not be a safe haven where defaulters of arbitration agreements and proceedings run to for protection. At least, in the instant case, the Nigerian court should have allowed the proceedings to be finally determined before it can entertain the application to set aside or enforce. This could have been a better approach instead of interfering with the completion of the arbitration proceedings. In fact, it is not hazarding to guess that it was this approach of the Nigerian court to the arbitration proceedings that signaled a threat to P & ID Ltd and the tribunal that the Nigerian court will be biased in enforcing the award, if Nigeria was to be the seat of the arbitration.

1. Conclusion:

International commercial arbitration is fast growing as the best means of resolving commercial disputes. Apart from other important factors such as a solid legal and institutional framework in support of arbitration, it cannot be gainsaid that a pro-arbitration judicial gesture is a key factor to guarantee the growth of international arbitration in any country. From a pro-arbitration perspective, the approach of the Nigerian courts in the cases considered above shows clearly that there is a need for a paradigm shift in the judicial thinking of the courts towards arbitration especially as it relates to those issues canvassed above.

A hostile or jealous judicial approach to arbitration drives away foreign investors, renders even the best of arbitration laws toothless and handicaps the international arbitration centers existing in the country as disputants choose to visit far away countries to resolve their disputes. There is need for the courts to be arbitration-friendly both in theory and in practice. For instance, in a recent decision by the People’s Court of China, the court enforced an arbitration agreement which designated a non-existent arbitral institution notwithstanding that the Chinese legal system invalidates such clauses. In order to give effect to intention of the parties, the court reasoned that from the surrounding circumstances, the parties intended that the Singapore law was agreed to by the parties to govern the arbitration agreement. The court saved the arbitration agreement by determining the validity of the arbitration agreement based on the Singapore law instead of the Chinese law.

[42] This approach is pro-arbitration and worthy of emulation by the Nigerian courts. International arbitration will not fare better in Nigeria if the courts continue to maintain anti-arbitration approach. Therefore, there is need for the courts to adopt a liberal approach when dealing with issues such as taking steps in the proceedings, anti-arbitration injunctions, e.t.c. Going forward, it is expected that several seminars on international arbitration will be held for the judges. Worshippers in the temple of justice (lawyers) are also expected to get acquainted with the practice of international commercial arbitration. These steps and many others are relevant to ensure that Nigeria one day becomes the international arbitration hub of Africa and the world at large.

[1] *Victor Obinna Chukwuma Esq. LLB (Nnamdi Azikiwe University, Awka), BL (Nigerian Law School, Victoria Island, Lagos) Counsel at Adekunle Ojo & Associates, Ikeja, Lagos. The writer can be contacted through his email: obinnaonwa132@gmail.com or his phone number: 07069182735

[2] Born, G.B “International Commercial Arbitration” (Kluwer Law International, Leiden, 2014) pg. 291

[3] Article 3 of the United Nations Commissions on International Trade Law on International Commercial Arbitration (1985) with amendments adopted in 2006.

[4] Section 57 (2) (d) of the Arbitration and Conciliation Act Cap A18 LFN 2004

[5] See footnote 2 page 1 of the UNCITRAL Model Law on Int’l Commercial Arbitration, adopted on June 21^st, 1985

[6] G.F Goldman “International Commercial Arbitration” (Kluwer Law International, 1999) pg. 10 (pp. 1-32)

[7] C.R Drahozal and R.W Naimark “Towards a Science of International Arbitration: Collected Empirical Research” published by Kluwer Law International BV 2005 pg. 31 (pp. 1-376)

[8] A. Redfern and M. Hunter “Law and Practice of International Commercial Arbitration” published by Sweet and Maxwell, London, 2004 pg. 25 (pp. 1-659)

[9] G.B Born “International Commercial Arbitration” Volume 1 published by Kluwer Law International BV, 2009 pg. 78 (pp. 1-3303)

[10] See Article 25(4) of the UNCITRAL Arbitration Rules; Esso Australia v. Plowman (1995) 183 C.L.R 10

[11] Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958 (Adopted by UNCITRAL on 7 July 2006); see section 51 (1) of the ACA

[12] M.L Moses “The Principles and Practice of International Commercial Arbitration” Cambridge University Press, 2008 pg. 4 (pp. 1 – 360)

[13] Section 34 of the ACA

[14] See L.A Mistelis and J.D.M Lew “Pervasive Problems in International Arbitration” published by Kluwer Law International BV, 2006 pg. 156 (pp. 1-391)

[15] L. Bantekas “An Introduction to International Arbitration” published by Cambridge University Press, UK, 2015 pg. 132 (pp. 1-392)

[16] See section 4 and 5 of the ACA

[17] See section 7 of the ACA

[18] See section 23 of the ACA

[19] See section 30 of the ACA

[20] See Article 9 of the UNCITRAL Model Law, Section 21 of the Lagos State Arbitration Law. Unfortunately, the     Arbitration and Conciliation Act under section 13 recognizes the tribunal’s power to make such orders but is silent on the powers of the courts in that regard.

[21] Section 52 of the ACA

[22] [2018] 15 NWLR 38

[23] Messrs. NV Scheep v. MV’S Araz (2000) 12 SC (Pt. 1) 164; Celtel Nigeria B.V v. Econet Wireless Ltd (2014) LPELR (22430) 1 at 58;

[24] Cap A5 LFN 2004

[25] (1997) SC Reprint 70 at 79

[26] Ibid (per Fatayi Williams JSC at page 79)

[27] Re: An Application by the Phoenix Timber Company Ltd (Appeal of V/O sovfracht) 1958 1 Lloyd’s Rep 305 at 308; Heyman v. Darwins Ltd (1942) Vol 72 Lloyd’s Rep 65

[28] [2018] 14 NWLR 423

[29] (2016) 9 NWLR 300

[30] [2017] ALL FWLR 1837

[31] Supra

[32] See E. Gaillard “Anti-Suit Injunctions in International Arbitration” IAI Seminar, Paris, November 21, 2003 published by Juris Publishing Inc. New York, USA, 2005 pg. 32 (pp. 1-372)

[33] (2004) SLR 14

[34] (1997) SC Reprint 70; (1977) ALL NLR 130

[35] (2005) 1 SLR 168

[36] See S. Petar “International Commercial Arbitration” published by Graham and Trotman Limited, Sterling House, London, 1989 pg. 52 (pp. 1-247)

[37] A. Redfern and M. Hunter Opcit pg. 162

[38] See Federal Ministry of Health v. Dascon Nig. Ltd (2017) LPELR – 43621 (CA); Transcoe Shipping Ventures Private Ltd v. MT Sea Sterling (2018) LPELR – 45108 (CA)

[39] Supra

[40] (1997) 9 NWLR (Pt 520) 224

[41] (2019) EWHC 2241

[42] ChinaLight International Trade Co Ltd v. Tata International Metals (Asia) Ltd, Beijing No.4 Intermediate People’s Court (2017)

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