Appraisal of Nigerian Arbitration and Conciliation Act towards A Better Reform

Abstract

Arbitration is a private consensual means of resolving disputes and is the most institutionalized of all the Alternative Dispute Resolution (ADR) mechanisms. The principal Act for regulating Arbitration and Conciliation in Nigeria is the Arbitration and Conciliation Act (Nigerian Act) enacted in 1988. The enactment of the Nigerian Act followed the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, 1985 and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958(New York Convention). The objectives of the Nigerian Act include providing a unified legal framework for the fair and efficient settlement of commercial disputes by arbitration and conciliation and to make applicable the New York Convention to any award made in Nigeria or in any contracting State arising out of international commercial arbitration. One thing which seems clear is that the Nigerian Act has, however, not achieved some of the major objectives that inspired its enactment. This is especially as it affects unified legal framework, fair and efficient dispute resolution process. The major objective of this thesis is to establish that the legal framework for arbitration and conciliation in Nigeria is neither unified nor adequate and efficient but could be made more efficacious for the benefit of Nigerians and foreign investors alike by enhancing party autonomy and minimizing, if not obviating undue judicial intervention in arbitration. To achieve this task, this thesis adopts both doctrinal and non-doctrinal methodologies, relying on both primary and secondary materials. In the main, the thesis critically analyzes the provisions of the Nigerian Act as well as the Reform Bill on Arbitration and Conciliation in Nigeria pending before the National Assembly since 2006. The study finds that inelegantly drafted provisions of the Nigerian Act have created confusion and generated conflicting and retrogressive judicial decisions. The study also finds that outdated concepts and definitions under the Nigerian Act have prevented the arbitral process from keeping pace with contemporary trends in international trade and commerce. The 1985 UNCITRAL Model Law and the 1976 UNCITRAL Rules which greatly influenced the provisions of the Nigerian Act were altered in 2006 and 2010 respectively, in order to meet up with existing realities. Yet, twenty-eight years after the enactment of the law, the Nigerian Act has remained fixated despite glaring need for amendment. This thesis concludes that the enactment of a new Nigerian Act modeled after the new Model Law and Rules is an imperative for the Nigerian business and regulatory environment.