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Recognition and Enforcement of International Commercial Arbitration Awards in Nigeria – Abiola Orekoya

International Commercial Arbitration Awards in Nigeria

The Legal Regimes for the Recognition and Enforcement of International Commercial Arbitration Awards in Nigeria: The Unresolved Question of whether the Provisions of Rules of Court can Override the Provisions of a Statute and International Convention

Abstract

The question of whether the provisions of rules of court in Nigeria can trump the provision of a statute and international convention in relation to the twin subjects of recognition and enforcement of international commercial arbitration awards in Nigeria viz-a-viz the legal regimes that govern the subject-matter is one that deserves special consideration. The question is even more deserving of scholarly attention given that there is no single academic work or judicial authorities that have addressed this issue. Against this backdrop, this paper attempts to analyze the different legal regimes that govern the recognition and enforcement of international commercial arbitration awards in Nigeria with the ultimate purpose of showcasing Nigeria as bedrock of sustainable resolution of cross-border and transnational commercial disputes through the mechanism of arbitration. In addition, this paper also examines the unresolved question of whether the provisions of rules of court can override the provisions of a statute and international convention.

Keywords:

Recognition of Awards, Enforcement of Awards, International Commercial Arbitration, Rules of Court, Statute, International Convention.

A. INTRODUCTION

There is no gainsaying that enforcement of international commercial arbitration awards is very important in the scheme of international commercial arbitration practice. It goes without saying that the whole purpose of parties resorting to arbitration to resolve cross-border or transnational disputes is defeated if after an arbitral tribunal has rendered a decision in the form of an award and the party that emerged at the seat of arbitration cannot enforce the award. It suffices to say that such an arbitral award is valueless and consequently, it is of no relevance whatsoever. As a matter of fact, the importance of enforcement of international commercial arbitration awards in Nigeria was succinctly captured in the words of one of the leading scholars of arbitration in Nigeria as follows:

One reason business people enter into arbitration agreement or may insist on inserting arbitration clause in contract is to hope for a binding and an enforceable award should one be rendered. An arbitration agreement or award without an effective mechanism may, in practice, be valueless. If an agreement or award which is not voluntarily carried out cannot be coercively enforced against a recalcitrant party, then the rationale for arbitration is eroded and confidence in the arbitral process would be shaken

Amazu A. Asouzu, “The Adoption of the UNCITRAL Model Law in Nigeria, Implication of the Recognition and Enforcement of Arbitral Awards” (1999), Journal of Business Law, 185.

Where there is voluntary compliance in terms of carrying out the terms of a foreign arbitral award, then the issue of recognition and enforcement of an arbitral award becomes moot and irrelevant. Sadly, in practice, this is usually not the case. This is because the unsuccessful party may either not voluntarily comply with the terms of the award or may even be recalcitrant and go as far as challenging the award on numerous grounds. Unfortunately, the arbitral process cannot by itself enforce its own award because an award simplicita does not have the force of a judgment of court.1 As such, it often means that the successful party may have won the battle but is yet to win the war.2

Against this backdrop, there is the need for an award-creditor who having obtained an award to take the necessary steps to have the award recognized by a Nigerian court so that the instrumentality of the court process can be invoked to enforce it. In view of this, the award-creditor must decide which of the enforcement regime he intends to adopt for the enforcement of the award. In Nigeria, an applicant seeking to enforce a foreign arbitral award may do so through any of the following enforcement systems: enforcement by court action upon the award; enforcement under the Reciprocal Enforcement of Judgment Statutes, (which comprises the Reciprocal Enforcement of Foreign Judgment Ordinance and Foreign Judgments (Reciprocal Enforcement) Act; enforcement under the Arbitration and Conciliation Act; enforcement under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards; and lastly, enforcement under the International Centre for the Settlement of Investment Disputes (ICSID) Convention. The question that needs to be answered is: to what extent are these systems of enforcement effective and progressive in expediting the enforcement of international commercial arbitration awards in Nigeria? This paper shall provide an answer to the above-raised question later in this paper. In addition, it also briefly examines the prospect as well the challenges of each of these systems of enforcement.

This paper thus interrogates the extent to which the above-mentioned legal regimes are receptive towards the enforcement of international commercial arbitration awards in Nigeria. In the same connection, this paper examines these different legal regimes with the sole aim of identifying the grey areas as well the need for law reform. Additionally, this paper also demonstrates that Nigeria has a pro-enforcement bias towards arbitral awards rendered in a foreign jurisdiction by acknowledging commercial parties’ autonomy regarding dispute resolution.

B. ENFORCEMENT OF ICA AWARDS IN NIGERIA

This section of the paper discusses the enforcement of international commercial arbitration under the various legislations and conventions which are applicable to Nigeria. It is worth mentioning again that there are five different methods for the enforcement of international commercial arbitration awards in Nigeria. These methods of enforcement include: enforcement by common law action upon the award; enforcement under the Reciprocal Enforcement of Judgement Statutes; enforcement under Section 51 of the Arbitration and Conciliation Act of Nigeria; enforcement under Section 54 of the Arbitration and Conciliation Act of Nigeria (New York Convention enforcement); and lastly, enforcement under the ICSID Convention. This paper now discusses these five different methods of enforcement below.

1. By Common Law Action upon the Award

As mentioned earlier, there are five different systems of enforcement of international commercial arbitration awards in Nigeria. One of such systems of enforcement, which is open to an award-creditor who wishes to enforce his foreign arbitral award in Nigeria is to bring a common law action upon the award. The rule at common law is that an award-creditor, having prevailed at the seat of arbitration and wishes to enforce an award can do this by suing upon the award itself as proof of debt owed to him by the award-debtor. In other words, the award-creditor can bring a court action on the award. This method of enforcement of international commercial arbitration is premised on the fact that international commercial arbitration agreement like any other agreement is enforceable in law and the breach of the same will be a ground for action at law.3

There are certain salient features of this method of enforcement of awards. An award-creditor who seeks to adopt this system of enforcement must, however, establish three basic elements, which are: first, the existence of the arbitration agreement. That is, he must plead and prove that the arbitration agreement, which is the evidence of the contract between the parties exists. Second, the award-creditor must also prove that the arbitral proceedings was proper and conducted in accordance with the arbitration agreement. Under this second element, the enforcing court will examine whether the principles of natural justice and fair hearing, such as notice of the appointment of arbitrators and services of arbitral processes were observed by the arbitral tribunal. Where there is a breach of this fundamental principles of natural justice and fair hearing, the enforcing court may decline to enforce the award. Third, the award-creditor must also plead and prove the validity of the award. Based on the peculiar nature of this system of enforcement, the method of initiating the court action for enforcement of the award is by writ of summons in the High Court. This is because enforcement by common law action upon the award is similar to the same way an action for recovery of debt is instituted, which is also by writ of summons.

Scholars have posited that the above common law rule is based on a few principles. First, they opine that this system of enforcement of foreign arbitral awards is based on the implied undertaking that by agreeing to submit their disputes to arbitration, the parties agree to comply with the decision of the arbitral tribunal, even if they are not satisfied with it.4 So, where the unsuccessful party fails to carry out the award, this would constitute a breach of that undertaking which would entitle the prevailing party to initiate proceedings in court for the enforcement of the award.5 Second, the rule is also based on the doctrine of obligation- which prescribes that where a foreign court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, the liability to pay the same becomes a legal obligation that may be enforced by an action of debt.6

It is important to note that under this system of enforcement, there is no need for reciprocity of awards. What this means is that there is no need for reciprocal treatment of awards in the country where the award was rendered. Thus, an award-creditor seeking to enforce a foreign arbitral award under this system of enforcement in Nigeria does not need to bother whether the country of origin (that is, where the foreign arbitral award was obtained) has a reciprocal treatment with the enforcing court. The Supreme Court of Nigeria eminently stated this principle of non-reciprocity of awards in the case of Topher Inc. of New York v. Edokpolor (Trading as John Edokpolor & Sons).7 The facts of the case were that the plaintiffs sued for a certain sum awarded in its favor by arbitrators in New York, and the Defendant applied to the High Court to set aside the award on the ground that it was “founded on a Foreign Arbitration governed by the laws of the State of New York, United States of America.” The trial court held that “for a foreign arbitral award to be recognized in Nigeria, there must be a treaty guaranteeing reciprocal treatment or an order in Council to that effect.”

The plaintiffs were dissatisfied with the decision of the trial court and appealed up to the apex court in Nigeria- the Supreme Court which held inter alia that a party is not prevented from suing upon a foreign judgment regardless of whether there is a reciprocal treatment in the country where it is obtained if no order is made under section 128 to modify that position. The court further noted the point that a suit brought upon a foreign award ought not to be struck out merely on the ground that there must be a treaty guaranteeing reciprocal treatment in the country where it was made or an Order in Council to that effect.

This paper observes that while the decision of the Supreme Court is logical, highly commendable, and of course, good law; the decision of the trial court is not good law because the law is that there is no need for reciprocal treatment of awards in the country where it was obtained. It must be borne in mind that the Supreme Court’s decision in the case under review made reference to section 12 of the Foreign Judgment (Reciprocal Enforcement) Act, which is another legal regime for the enforcement of international commercial arbitration awards in Nigeria. This piece of legislation is important for an award-creditor who seeks to enforce a foreign arbitral award in Nigeria. It is examined later in this paper. However, before examining it, this paper considers it apt to discuss the relevance or otherwise of the Supreme Court’s allusion to section 12 of the Act and what effect or bearing that particular section has on reciprocal treatment of awards under the legal regime of enforcement by action upon the award. Section 12(1) of the Foreign Judgment (Reciprocal Enforcement) Act provides that:

If it appears to the Minister of Justice that the treatment in respect of recognition and enforcement accorded by the courts of any foreign country to judgments given in the superior courts of Nigeria is substantially less favorable than that accorded by the courts of Nigeria to judgments of the superior courts of that country, the Minister of Justice may by order apply this section to that country.9

The literal interpretation of the above-reproduced provision of the Foreign Judgment (Reciprocal Enforcement) Act is that if the Minister of Justice of Nigeria is of the view that a foreign country does not treat the judgment of a superior court of Nigeria as favorable as Nigeria does to its own judgment, the Minister of Justice has the discretion to order that the superior courts in Nigeria refuse to entertain any proceedings in respect of enforcement of any sum of money due to be payable under a judgment rendered in a court of such a foreign country.10 The implication this provision has on the principle of non-reciprocity available under the legal regime of enforcement by action upon the award is that until the Minister of Justice invokes his power under Section 12 of the Foreign Judgment (Reciprocal Enforcement) Act, the position is still that there is no need for reciprocity under enforcement by action upon the award at common law.

Despite the relative strength of this regime, it is not without its own shortcomings. To that end, even though an award-creditor does not have to worry about the issue of reciprocity, this method of enforcement is not recommended to an applicant seeking to enforce a foreign arbitral award in Nigeria, because it is cumbersome, slow, and time-consuming. Conventional wisdom tells us that one of the principal reasons why parties to international business, commerce and transactions choose international commercial arbitration to settle their disputes is because of its relative ease and expeditious method of settling commercial disputes. On the contrary, this method would achieve the very opposite because it gives room for an award debtor to re-open, by way of defense, some, if not all the issues that have been disposed of by the arbitral tribunal. The corollary of this is that an award creditor using this method of enforcement may sometimes be put to the task of proving afresh the substantive merits of a case they have already won at the seat of arbitration, thereby undermining the sanctity of the doctrine of res judicata which is an integral feature of an arbitral award.11

2. By Registration under the Reciprocal Enforcement of Judgment Statutes

The enforcement of international commercial arbitration awards in Nigeria is also governed by two reciprocal enforcement statutes: The Reciprocal Enforcement of Foreign Judgments Ordinance of 192212 and The Foreign Judgments (Reciprocal Enforcement) Act of 1961.13 Thus, an award-creditor can enforce an international commercial arbitration awards in Nigeria under either of the two-mentioned reciprocal enforcement statutes as if it were a foreign judgment,14 albeit, depending on the country in which the foreign arbitral awards was rendered. For example, the former (Reciprocal Enforcement of Foreign Judgment Ordinance) was enacted to deal with the issue of the registration of judgments (which includes awards) obtained in Nigeria and the United Kingdom and other parts of Her Majesty’s dominions and territories. While the latter (Foreign Judgments (Reciprocal Enforcement) Act) is an Act which provides for the enforcement in Nigeria of judgments given in foreign countries which accord reciprocal treatment to judgments given in Nigeria, for facilitating the enforcement in foreign countries of judgments given in Nigeria, and for other purposes in connection with matters aforesaid.15

For ease of better comprehension, this paper discusses these two reciprocal enforcement statutes one after the other- the paper begins with the Reciprocal Enforcement of Foreign Judgment Ordinance and thereafter, considers the corresponding statute- the Foreign Judgment (Reciprocal Enforcement) Act. In the same connection, the paper also discusses their strengths and weaknesses and recommend which is suitable for an award-creditor who seeks to enforce a foreign arbitral in Nigeria. In light of this, this paper entertains the question: which of these two legal regimes is the governing law in Nigeria as far as the recognition and enforcement of foreign judgments is concerned? This paper provides an answer to this question below.

With respect to the Reciprocal Enforcement of Foreign Judgment Ordinance, as mentioned earlier, the Ordinance was enacted to deal with enforcement of foreign judgments obtained in the UK and “other parts of Her Majesty’s Dominions and Territories under Her Majesty’s protection.”16 Some of these Territories are today referred to as the Commonwealth countries. The Ordinance was enacted during the British colonization of Nigeria and despite Nigeria’s independence since 1960, the statute is still applicable till date.

Under this legal regime, the method of instituting an action for the registration and enforcement of foreign arbitral awards is by originating summons. By virtue of Section 3(1) of the Reciprocal Enforcement of Foreign Judgment Ordinance, a foreign arbitral award obtained in the United Kingdom and other Commonwealth countries can be registered and enforced in Nigeria within 12 months of the date the award was rendered.17 The courts strictly construe the twelve months timeframe, which an award-creditor has to register and enforce a foreign arbitral award in Nigeria. In Andrew Mark Macaulay v. Raiffeisen Zentral Bank (RZB) Austria,18 the court held that any application for enforcement of foreign arbitral award in Nigeria which is made outside the twelve months timeframe is statute barred.

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The Reciprocal Enforcement of Foreign Judgment Ordinance is fraught with the challenge of being behind the times. Therefore, this paper is of the considered view that the Ordinance is not in tune with the realities of modern day international commercial dispute resolution because it is outdated.

With respect to the Foreign Judgment (Reciprocal Enforcement) Act, a foreign arbitral award may be enforced in Nigeria within six years from the time the award was rendered. Under this legal regime, the method of enforcement of a foreign arbitral award is by application to the enforcing court for registration of the award. The application for the registration of the award is by originating summons and it must be brought within six years from the time the award was rendered or where there have been proceedings by way of appeal against the judgment, after date of the last judgment given in those appeal.19 If the award-creditor’s application for registration of the award is successful, he can then immediately use the ordinary writ of execution to execute the award.

It must be borne in mind that enforcement of foreign arbitral award under this legal regime is not automatic. In other words, an award-creditor seeking to enforce an award pursuant to the Foreign Judgment (Reciprocal Enforcement) Act must satisfy certain conditions before which such an award rendered in a foreign country can be enforced in Nigeria. These conditions are briefly discussed below:

First, such a foreign arbitral award must have been capable of enforcement in the country where it was rendered.20 Second, for such a foreign arbitral award to be capable of enforcement in Nigeria, it must first have been registered and thus, acquired the status of a judgment of that original court.21 Third, by virtue of the Act, reciprocity is a pre-condition for the enforcement of foreign arbitral awards in Nigeria.22 Thus, for a foreign arbitral award to be enforced pursuant to the Foreign Judgment (Reciprocal Enforcement) Act, there must be evidence of reciprocity showing that the country from where the award originated treats Nigerian judgments and arbitral awards favorably.23

Under the Foreign Judgment (Reciprocal Enforcement Act), there are certain grounds upon which an enforcing court may refuse to enforce a foreign arbitral award. By virtue of Section 6 of the Act, an application for the enforcement of a foreign arbitral award may be set aside based on the following grounds: first, the arbitral tribunal had no jurisdiction in the circumstances of the case to deal with the matter,24 second, if the successful party or the arbitral tribunal failed to serve notice of its proceedings to the defendant,25 third, if the award was obtained by fraud, and lastly, if the enforcement of the award will be contrary to the public policy of Nigeria.26

With regard to the above-mentioned reciprocal enforcement of judgment statutes, this paper considers a fundamental question which has generated a lot of controversies before delving into the other legal regime for the enforcement of foreign arbitral awards in Nigeria. The question remains: between the Reciprocal Enforcement of Foreign Judgement Ordinance and the Foreign Judgment (Reciprocal Enforcement) Act, which of these two legal regimes govern the enforcement of foreign arbitral awards in Nigeria? The confusion created by this question has led not only to two different schools of thought but also conflicting court decisions. Two court decisions with almost similar fact patterns would be used to illustrate this point.

The first case is Dale Power Systems Plc v. Witt & Busch Ltd.27 The brief facts of the case were that the Appellant obtained a money judgment from the Queen’s Bench Division of the High Court of Justice in England. In order to enforce the judgment in Nigeria against the Respondent, the Appellant applied to the High Court to have it registered. The Respondent filed an objection to the registration. In determining the objection, the trial court applied the provisions of the Foreign Judgment (Reciprocal Enforcement) Act. The Appellant was dissatisfied was the decision of the trial court and therefore appealed to the Court of Appeal. The Appellant contended inter alia that the Reciprocal Enforcement of Foreign Judgment Ordinance (the 1958 Ordinance) was the applicable statute that governs the case. The Court of Appeal, per Honorable Justice Oguntade, JCA (as he then was) held that the lower court was in error in applying the Foreign Judgment (Reciprocal Enforcement) Act. He stated further that the applicable legislation was the Reciprocal Enforcement of Foreign Judgment Ordinance.

This paper submits that the above-case law authority is a good law. The reason why the decision of the Court of Appeal is correct is because this case has to do with the Commonwealth and the Queen and Her Majesty- the foreign arbitral award in question was obtained in England.

The second case is the case of Halaoui v. Grosvenor Casinos Ltd-28 a case which came up for determination by the same Court of Appeal barely two years after the above case was decided. In this case, the Respondent having obtained judgment at the High Court of England applied ex parte to have it registered in the High Court of Oyo State Nigeria under Section 4(1) of the Foreign Judgment (Reciprocal Enforcement) Act for the purpose of enforcement against the Respondent who was resident in Oyo State. The Appellant applied to set aside the registration for non-compliance with section 6(2) of the Foreign Judgments (Reciprocal Enforcement) Act. The lower court declined jurisdiction relying on sections 73, 74(1)(m) and 135(2) of the Evidence Act. On appeal, the Court of Appeal set aside the lower court’s judgment and held that the relevant statute was the 1990 Act and that the Evidence Act and the common law were inapplicable for the enforcement of foreign judgments in Nigeria. The Court of Appeal was silent on the 1958 Ordinance as it was not canvassed by either of the parties.

The Court of Appeal was clearly mistaken and thus, its decision in the above case was wrong and not supported by law. It is an elementary principle of law that ‘it is for the court to know the law’29 and the corollary of this is the principle that the ‘ignorance of the court is the calamity of the innocent.’30 Against this backdrop, this paper takes the view that in line with the principle of law that it is for the court to know the law, it is no excuse that because the parties did not canvass the 1958 Ordinance, so the court should be silent on it and make a decision that is not supported by law. In addition, given the fact that the Respondent obtained the judgment in question at the High Court of England, the necessary implication of this is that the relevant statute that should have governed the case was the Reciprocal Enforcement of Foreign Judgement Ordinance because the case had to do with the Commonwealth and the Queen and Her Majesty- the judgment was obtained in England. It is therefore suggested as one of the recommendations of this paper that there should be a coherent body of judicial precedent and more so, if Nigeria is going to be a hub for the enforcement of international commercial arbitration awards where parties to international business transactions would like to enforce their awards, then there is a corresponding obligations on the part of her courts to get things rights and avoid conflicting decisions so as to create certainty in the law.

Luckily, the Supreme Court of Nigeria has laid this intellectual polemics to rest in cases that came after the above-mentioned cases. The court has pronounced the 1958 Ordinance as the relevant statute that governs reciprocity of foreign arbitral awards between Nigeria and the United Kingdom.31 In Andrew Mark Macaulay v. Raiffeisen Zentral Bank (RZB) Austria,32 the Supreme Court stated the law correctly thus:

“The Reciprocal Enforcement of Judgment Act 1922, Cap 175 Laws of the Federation and Lagos 1958 which was promulgated to deal with issues of registration of judgments obtained in Nigeria and the United Kingdom and other parts of Her Majesty’s dominions and territories was not specifically repealed by the Foreign Judgments (Reciprocal Enforcement) Act 1961, Cap 152 Laws of the Federation of Nigeria 1990 and so it still applies to the United Kingdom and to parts of Her Majesty’s dominion to which it was extended by proclamation under section 5 of the Ordinance before the coming into force of the 1990 Act.”33

The above quoted dictum of the Supreme Court is highly supportive of the position that it is the Reciprocal Enforcement of Foreign Judgment Ordinance that governs the enforcement of foreign arbitral awards in Nigeria, albeit cases dealing with reciprocity of foreign arbitral awards between Nigeria and the United Kingdom and other Commonwealth countries. More apt to this position is the powerful dictum of his Lordship, Honorable Justice Kalgo, JSC (as he then was)

“The 1958 Ordinance was promulgated as No. 8 of 1922 to facilitate the reciprocal enforcement of judgments obtained in Nigeria and in the United Kingdom and other parts of Her Majesty’s protection. It came into operation on the 19th of January 1922. There is no doubt therefore that it applies to all judgements of the superior courts obtained in the United Kingdom and its application can be extended to other territory administered by the United Kingdom and any other foreign country. This can be done by proclamations pursuant to section 5 of the Ordinance. Therefore the 1958 Ordinance having not been repealed by the 1990 Act still applies to the United Kingdom. There is no doubt that the judgment in question was given by the High Court in the United Kingdom. Therefore, the provisions of the 1958 Ordinance fully apply to it.”

3. By an Application under Section 51 of the Arbitration & Conciliation Act, 1988.

The principal legislation that governs the conduct of arbitration in Nigeria is the Arbitration and Conciliation Act of Nigeria. The Act makes provision for the recognition and enforcement of arbitral awards in Nigeria. Section 31 of the Act has provisions that deal with the recognition and enforcement of domestic awards in Nigeria while section 51 of the same Act deals with the recognition and enforcement of foreign arbitral awards in Nigeria. This section of the paper restricts itself to section 51 of the Act which deals with the recognition and enforcement of foreign arbitral awards in Nigeria. However, before analyzing this legal regime for the enforcement of foreign arbitral awards under Section 51 of the Act, it is instructive to briefly discuss the historical facts as well as the purpose of the Arbitration and Conciliation Act in order to have a thorough understanding of the workings of the statute with a view to appraising its strengths and weaknesses and proffer practical solutions to the latter.

The earliest attempt at consolidating the laws on arbitration in Nigeria was in 1914 when the first statute was enacted- the Arbitration Ordinance of 191434 which applied to all the parts of the country. The nature and provisions of the Arbitration Ordinance of Nigeria reveals that it was modelled after the English Arbitration Act of 1889. This is rather not surprising given Nigeria’s colonial history and her political affiliation with Britain. Later in 1914, the Arbitration Ordinance was later repealed and replaced by an Act, which became known as the Arbitration Ordinance Act of 1914. One innovation brought by the Arbitration Ordinance Act was that in 1954,35 its application was extended to all the regions in Nigeria.36

The Arbitration Ordinance Act in that year took a progressive step further in terms of its scope and application. The Act not only governed the conduct of domestic arbitration in Nigeria but was also made applicable to international arbitration and in the view of the author of this paper, this arguably is the developmental origin of international commercial arbitration in Nigeria.

Some decades after the Arbitration Ordinance Act, the Arbitration and Conciliation Act was enacted in 1988.37 The purpose of the Act is to provide a unified legal framework for the fair and efficient settlement of commercial38 disputes by arbitration and conciliation; and to make applicable the Convention on the Recognition and Enforcement of Arbitral Awards (New York Convention) to any award made in Nigeria or in any Contracting States arising out of international commercial arbitration.39 Section 51(1) of the Arbitration and Conciliation Act provides:

An arbitral award shall, irrespective of the country in which it is made, be recognized as binding and subject to this section 32 of this Act, shall, upon application in writing to the court, be enforced by the court.40

The above-quoted provision of the ACA gives an endorsement that a foreign arbitral award may be enforced in Nigeria regardless of the country in which the award was made. Section 51(1) of the Act used the term “…irrespective of the country where the award was made…” It is therefore important to interrogate what implication the usage of that term would have on the jurisprudence of recognition and enforcement of international commercial arbitration awards in Nigeria. Does it mean that the doors of the Nigerian courts are open to all manners of foreign arbitral awards, or they are limited only to awards emanating from Contracting States? Could it also be that the usage of that term gives the impression that the requirement of reciprocity as contained in the provisions of the Reciprocal Enforcement of Foreign Judgment Ordinance and the Foreign Judgment (Reciprocal Enforcement) Act had been jettisoned and hence, not a requirement under Section 51 of the ACA? These are issues of foremost consideration, which this paper strives to resolve. In resolving these questions, this paper posits that Nigeria has not jettisoned the reciprocity reservation requirement because of the ACA’s incorporation of the provisions of the New York Convention), which hitherto provides for the reciprocity reservation. The position of this paper is further reinforced by the Supreme Court of Nigeria’s articulation of this point in M.S.S. v. Kano Oil Millers41 that reciprocity of treatment is required in the enforcement of foreign award in Nigeria pursuant to section 51 of the ACA.42

This paper takes the view that the decision of the Supreme Court in the above case is partly and not entirely correct. In this regard, the Supreme Court missed the point when it held that reciprocity of treatment is required in the enforcement of foreign awards in Nigeria pursuant to section 51 of the ACA. The wordings of the ACA in Section 51(1) are clear and do not leave room for any ambiguity. The section employs the word “irrespective of the country in which the award was made.” This, without more means that it does not matter where the award was made- whether it was made in a Contracting State to the New York Convention or not, there is no need for reciprocity. At best, the Supreme Court could have been entirely correct if it had not added pursuant to the provision of Section 51 of the ACA but had just said under the Arbitration and Conciliation Act.

On the flip side of the coin, it could be argued that, although there is need for reciprocity of awards generally under the ACA, however, an award-creditor seeking to enforce a foreign arbitral award pursuant to Section 51(1) of the Arbitration and Conciliation Act does not need to fulfil the reciprocity requirement. This is because a literal interpretation of the phrase “irrespective of the country in which it was made,” is indicative of the fact that there is no requirement for reciprocal treatment of awards under the legal regime for the enforcement of foreign arbitral awards pursuant to Section 51(1) of the ACA. Thus, a foreign arbitral award, regardless of whatever country it was rendered, can be enforced in Nigeria under the provision of Section 51(1) of the ACA.

There is no gainsaying that the above creates a problem of interpretation, which is further complicated by the Supreme Court’s decision in the Kano Oil Millers’ case, which to a degree is erroneous. In order to avoid falling into the same pit which the award-creditor in the extant case fell, it is suggested that an award-creditor seeking to enforce a foreign arbitral award which was made in a country that does have any reciprocal treatment with Nigeria should come under Section 51(1) of the ACA because on the face of that provision, there is no requirement of reciprocity.

Section 51(2) of the Arbitration and Conciliation Act provides for the documents which an applicant seeking to enforce a foreign arbitral award in Nigeria must furnish to the enforcing court. It provides that the party relying on an award or applying for its enforcement shall supply the following documents for enforcement:43

(a) the duly authenticated original award or a duly certified copy thereof;
(b) the original arbitration agreement or a duly certified copy thereof; and
(c) where the award or arbitration agreement is not made in the English language, a duly certified translation thereof into the English language.

Under the legal regime of the ACA, the method of initiating an action to enforce a foreign arbitral award in Nigeria is by an originating application (Motion on Notice), which is brought before the appropriate court.44 In Imani & Sons Ltd. v. BIL Construction Co. Ltd.,45 he Court of Appeal not only emphasized this point, but further stated that there are other simple requirements which a party seeking to enforce a foreign arbitral award must meet. These requirements are: first, the applicant must produce the arbitration agreement which evidences the contractual agreement between the parties. Second, the applicant must also produce the original arbitral award. The third requirement is that the applicant must furnish the enforcing court with the name and last place of business of the person against whom the award is intended to be enforced. The last requirement which the applicant must meet is that he must prove that the arbitral award has not been complied with or complied with only in parts.

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It must be noted that although the ACA does not stipulate the third and fourth requirements, however, it is the considered view of this paper that the Nigerian court was pro-active in this regard. The reason for this is not farfetched. Courts guard their jurisdiction jealously and would not want their judgments to be given without any effect; hence, they want to verify whether the party against whom the award is to be enforced, if a company for instance, is still a going concern.46

4. By an Application under Section 54 of the Arbitration & Conciliation Act, 1988 (New York Convention Enforcement)

The fourth legal regime that governs the enforcement of international commercial arbitration awards in Nigeria is the New York Convention. The New York Convention is one of the international conventions regulating international commercial arbitration globally and this paper is of the view that it is the most important international legal instrument on international commercial arbitration, with a particular reference to the recognition and enforcement of international commercial arbitration awards. As a matter of fact, the Convention has been eulogized as ‘the single most important pillar on which the edifice of international arbitration rests.’47 In view of this, this paper discusses the enforcement of international commercial arbitration awards in Nigeria pursuant to the New York Convention.

The New York Convention is one of the international treaties which has been domesticated and incorporated into the body of laws in Nigeria.48 The Convention applies to Nigeria by virtue of Section 54(1) of the ACA, which provides that:

Without prejudice to sections 51 and 52 of this Act, where the recognition and enforcement of any award arising out of an international commercial arbitration are sought, the Convention on the Recognition and Enforcement of Foreign Award (hereafter referred to as “the Convention” set out in the second schedule to this Act shall apply to any award made in Nigeria or in any contracting State.49

The Convention further states in paragraphs (a) and (b) of sub-section (1) thus:

(a) provided that such contracting state has reciprocal legislation recognizing the enforcement of arbitral awards made in Nigeria in accordance with the provisions of the Convention.50

(b) That the Convention shall apply only to differences arising out of legal relationship which is contractual.51

Paragraph (a) clearly reinforces the position that Nigeria subscribes to the reciprocity reservation by virtue of her domestication of the New York Convention. This is unlike the legal regime pursuant to Section 51 of the ACA under which the reciprocity reservation can be dispensed with. The implication of the foregoing is that for a foreign arbitral award to be enforced under the New York Convention enforcement regime, it must be shown to the enforcing court in Nigeria that such a contracting state has a reciprocal law or arrangement whereby foreign arbitral awards made in Nigeria are also recognized and enforced in the forum of the contracting state. Therefore, foreign arbitral awards made in a country which does not subscribe to the New York Convention or does not accord reciprocal treatment to foreign arbitral awards emanating from Nigeria cannot in return enjoy the recognition and enforcement benefits provided under Section 54 of the ACA- which by necessary implication is the New York Convention provision of recognition and enforcement of foreign arbitral awards.

One of the provisions of the New York Convention that is directly relevant to the recognition and enforcement of foreign arbitral awards is the provision of Article III. The said provision provides in pertinent part:

Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.52

The second leg of the above provision “… there shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards” is a clarion call on Contracting States not to place onerous responsibilities on parties seeking to recognize and enforce arbitral awards. However, the Nigerian court in Ebokam v. Ekwenibe & Sons Trading Company53 contravened this statutory requirement. In that case, the Nigerian Court of Appeal listed additional requirements which an applicant seeking to enforce a foreign arbitral award under the New York Convention must satisfy. These requirements are as follows: first, that there was an arbitration agreement. Second, that the dispute in question arose within the terms of the submission to arbitration. Third, that the arbitrators were appointed in accordance with the clause which contains submission. Fourth, that there was rendition of the arbitral award. Lastly, that the amount awarded by the arbitral tribunal has not been paid by the award-debtor, hence the institution of an action to enforce the award.

This paper humbly submits that these requirements are not only onerous, but also serve as a clog in the wheel of an award-creditor seeking to enforce an award in Nigeria. This is because the above-mentioned requirements vary the statutory provision enshrined in Article III of the New York Convention to which Nigeria has acceded to, and the concomitant effect of this is that those requirements being a further elongation of the requirements under Article III run afoul of the pro-enforcement bias philosophy advocated by the New York Convention.54 Additionally, if Nigeria is going to portray the image of an arbitration-friendly country which is more disposed to enforcing foreign arbitral awards, the Ebokam’s case should be reviewed and the Court of Appeal or better still, the Nigerian Supreme Court should reconsider the decision given in that case so that it won’t serve as a bad precedent for future cases.

5. By Filing under the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act, (“ICSID Act”)

The fifth and last method of enforcing an arbitral award in Nigeria is by filing under the International Centre for Settlement of Investment Disputes Act (hereinafter referred to as the ICSID Convention). It is important to note that unlike the other enforcement regimes previously discussed above, the enforcement regime under the ICSID Convention is limited only to disputes arising out of an investment between Contracting States to the Convention and investors who are nationals of other Contracting States.55

Article 54(1) of the ICSID Convention provides thus:

Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgement of the courts of a constituent state.56

The equivalent provision of the above is contained in Section 1 of the Nigerian International Centre for the Settlement of Investment Disputes (Enforcement of Awards) Act. However, before considering the provision of that Act, this paper finds it instructive to consider the brainbox behind the enactment of that legislation. By virtue of Section 12 of the Constitution of the Federal Republic of Nigeria,57 which provides that no treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly. This section deals with the implementation of international treaties by the Nigerian National Assembly- which is the highest law-making body in Nigeria. In the same connection, Article 69 of the ICSID Convention provides that each Contracting State shall take such legislative or other measures as may be necessary for making the provisions of this Convention effective in its territories.58 The Federal Republic of Nigeria through its National Law-making body- the National Assembly acted upon these specific provisions of the law and enacted the International Centre for the Settlement of Investment Disputes (Enforcement of Awards) Act.59 This Act has only two sections and Section 1 of the Act, which has been alluded to in the preceding paragraph provides that:

Where for any reason it is necessary or expedient to enforce in Nigeria an award made by the International Centre for the Settlement of Investment Disputes, a copy of the award duly certified by the Secretary General of the Centre aforesaid, if filed in the Supreme Court, by the party seeking its recognition for enforcement in Nigeria, shall for all purposes have effect as if it were an award contained in a final judgment of the Supreme Court, and the award shall be enforced accordingly.60

The above provision of the ICSID Convention is interpreted to mean that an ICSID award shall be enforced in Nigeria as if it were an award contained in a final judgment of the Supreme Court provided a copy of such an award, duly certified by the Secretary General of the Centre is filed in the Supreme Court by the party seeking its recognition and enforcement.2

Article 54(2) of the ICSID Convention on the other hand provides that:

A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary-General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation.61

The purport of this provision is that it prescribes the procedural paperwork which a party seeking recognition and enforcement of an ICSID award in the territory of the Contracting State must comply with. Additionally, the said provision mandates Contracting States to designate a court of competent jurisdiction or other authority which is saddled with the responsibility of handling requests for enforcement of ICSID awards and the Secretary-General of ICSID must be notified of such designation. It must be borne in mind that the competent court or other authority referred to in section 54(2) of the ICSID Convention is the Supreme Court of Nigeria.

The challenge which an award-creditor seeking to enforce an ICSID award in Nigeria may encounter is the absence of a clear-cut rules of procedure for the enforcement of ICSID awards in Nigeria. Without doubt, Nigeria has shown a manifest commitment to execute the international obligations placed upon ICSID member states under the Convention, which is to recognize and enforce an award rendered pursuant to the Convention by enacting the International Centre for the Settlement of Investment Disputes (Enforcement of Awards) Act; it is however unfortunate that the Act did not specifically make any provision regarding the procedure for the enforcement of ICSID awards in Nigeria. At best, it only proclaims in Section 1(2) of the Act that the Chief Justice of Nigeria shall make such provisions necessary for the enforcement of ICSID awards in Nigeria without more.62 Unfortunately, the Chief Justice of Nigeria has not made or adopted any rules of procedure for the enforcement of ICSID awards at the Supreme Court of Nigeria as at today.23

This paper humbly advocates that there be in place a clear-cut rules of procedure for the enforcement of ICSID awards in Nigeria, just like we have them in the other systems of enforcement of international commercial arbitration awards which have been discussed above. In light of this, the paper also suggests that the Chief Justice of Nigeria should be pro-active and take the necessary steps towards making provisions regarding the procedure for the enforcement of ICSID awards in Nigeria. Where these are in place, investors and other Contracting States to the Convention would be more readily disposed towards enforcing ICSID awards in Nigeria because they will see it as a fertile ground for enforcement.

C. REGISTRATION OF ICA AWARDS- IS IT REQUIRED UNDER THE ACA?

1. Unreality of Registration as a Basis of Enforcement under Order 52 Rule 17 FHC Rules

No doubt, the Federal High Court (Civil Procedures) Rules 200963is one of the legal frameworks for international commercial arbitration awards in Nigeria. Order 52 of the FHC Rules generally provides for arbitration.64 In addition, Order 52 Rule 16 provides for the enforcement of arbitral awards.65 However, the heading of Order 52 Rule 17 is couched thus ‘Registration of Foreign Arbitral Awards.’ The said Order 52 Rule 17 of the FHC Rules provides:

Where an award is made in proceedings on an arbitration in a foreign territory to which the Foreign Judgment (Reciprocal Enforcement) Act extends, if the award was in pursuance of the law in force in the place where it was made; it shall become enforceable in the same manner as a judgment given by a Court in that place and the proceedings of the Foreign Judgments (Reciprocal Enforcement) Act shall apply in relation to the award as it applies in relation to a judgment given by that Court.66

The simple interpretation of the above-quoted provision of the Rules of the Federal High Court is that it places an unnecessary task on an award-creditor seeking to enforce a foreign arbitral award in the Federal High Court. The purport of that provision is that it underscores the need for registration of foreign arbitral awards before such awards can be enforced. The provision of Order 52 Rule 17 has generated some debates in the arbitration community as to whether the requirement for registration of a foreign arbitral award under the FHC Rules is a sine qua non to enforcement under the ACA and New York Convention enforcement regimes? This debate has further ignited connected questions. First, in view of the provision of Order 52 Rule 17 of the FHC (Civil Procedures) Rules, does the provision of rules of court override that of a statute on a subject-matter? Flowing from that question, secondly, does the provision of rules of court override that of an international convention on a subject-matter?

Before attempting to answer the questions raised above, this paper considers it necessary to briefly examine the hierarchy of laws in Nigeria so that the readers can have a background of how the system of laws works in Nigeria. Nigeria has a well-structured system of courts and laws. As a matter of fact, Nigeria operates a hierarchical classification of Laws. In other words, laws are applied in Nigeria in order of their superiority and supremacy. In the hierarchy of Laws in Nigeria, the Constitution of the Federal Republic of Nigeria67 is the number one and most superior Laws in the land.

In line with the Pure Theory of Law developed by Hans Kelsen,68 the Constitution of Nigeria is the supreme law of the land. It is the primary norm in the country and in that regard, every other norm traces their validity to the Constitution. Thus, the validity of every other law in Nigeria is derived from the Constitution. In view of this, Section 1(3) of the Nigerian Constitution provides that “if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”69 The Supreme Court of Nigeria gave judicial fortification to that provision in Attorney-General of Lagos State v Attorney-General of the Federation70 wherein it held that if any other law is inconsistent with the provisions of this Constitution, such other law shall to the extent of its inconsistency be declared null and void. To that end, it suffices to say that the Constitution of Nigeria is the fons et origo.71 and the organic law of the land.

Next in the hierarchy of classification of Laws in Nigeria is Legislation. Legislation is a generic term for laws such as Ordinances, Acts, laws, decrees, edicts and bye-laws. After Legislation are Judicial precedents; Customary law; Islamic law; Received English law (common law, equitable doctrines and statutes of general application that were in force in England on 1 January 1900) before it gets to Act and State Laws establishing the various Courts and the Rules of Courts in Nigeria.

See also  Difference between Procedural and Substantive Justice

Therefore, between an Act of the National Assembly and Rules of Court made pursuant to an Act establishing the Court, the former is superior. Ditto to an international convention. In this context, between the Arbitration and Conciliation Act of Nigeria and the Federal High Court (Civil Procedure) Rules, the former is superior to the latter. Thus, where there is a conflict between the provisions of the ACA and the FHC Rules, those of the ACA will prevail and trump the latter.

After a careful study and examination of the ACA, there is nowhere ‘registration’ was mentioned as a pre-requisite for the enforcement of foreign arbitral awards in Nigeria. On its own part, the New York Convention which is the primary instrument for the recognition and enforcement of foreign arbitral awards too does not prescribe registration as one of the bases for the enforcement of foreign arbitral awards. On the other hand, as mentioned above, Order 52 Rule 17 of the FHC Rules introduces registration of foreign arbitral awards into the enforcement jurisprudence. From the foregoing points made, this paper therefore queries thus: does Order 52 Rule 17 apply to all foreign arbitral awards? Conversely, does Order 52 Rule 17 apply only to awards rendered in non-New York Convention countries? If all these questions are answered in the affirmative, does it mean that all award-creditors seeking to enforce a foreign arbitral award made pursuant to the New York Convention must first submit themselves to the provision of the rules of court and go through the process of registration, as required by Order 52 Rule 17 of the FHC Rules? Although these issues remain moot and consequently, are a mere academic exercise, as they have not been adjudicated by any court in Nigeria.

In relation to the above, the law is that the provisions of rules of court cannot trump the provisions of a statute and international convention on a subject-matter. The court reiterated this principle of law in Nwanezie v. Idris, where his Lordship Okoro, J.C.A. held that where the provisions of rules of court conflict or disagree with those of a statute or international convention, the provisions of the statute and convention shall prevail because they are superior.

In relating the above background and judicial pronouncements to the core questions raised in this paper, this paper submits that one, the requirement for registration of foreign arbitral awards under Order 52 Rule 17 cannot be sustained in view of the provisions of the ACA and the New York Convention to the contrary. Second, an applicant seeking to enforce a foreign arbitral award at the Federal High Court only needs to apply to the court for an order to recognize and enforce the award either under Section 51(1) of the ACA or Section 54 of the ACA (Enforcement under the New York Convention) without more. More importantly, the applicant must comply with the documentary evidence requirements enshrined under Article IV of the New York Convention.

D. CONCLUSION

This paper has exhaustively examined the various legal regimes that govern the recognition and enforcement of international commercial arbitration in Nigeria. In the same connection, it has also provided an answer to the question which was raised at the preliminary part of this paper, which is to the effect that to what extent are these systems of enforcement effective and progressive in expediting the enforcement of international commercial arbitration awards in Nigeria? In addition, this paper has briefly examined the prospect as well the challenges of each of these systems of enforcement. After a careful examination of each of these systems of enforcement, this paper was able to proffer solutions to some of the problems inherent in these legal regimes and made some recommendations thereof.

This paper respectfully submits that of all these legal regimes that govern the recognition and enforcement of international commercial arbitration in Nigeria, there is no one which is entirely better or better still, more advantageous than the other. Nonetheless, this paper concedes the fact that the award creditor should appraise the peculiar facts of his case and determine which of these systems of enforcement that is best suited for his case.

Against this background, this paper counsels that it is important for an award-creditor seeking to recognize and enforce a foreign arbitral award in Nigeria to have a background and thorough understanding of the legal framework for the recognition and enforcement of international commercial arbitration in Nigeria. This is so important because not only will it help such a party to know under which of the legal regimes he should bring an application for the recognition and enforcement of the award; but it will also prevent it from pitfalls, thereby avoiding the technical challenges inherent in the systems of enforcement which do not serve his best interest.

More so, this paper suggests that there is the need for the Nigerian courts to uphold the pro-enforcement philosophy of the New York Convention when considering applications for the recognition and enforcement of foreign arbitral awards in Nigeria. This point is crucial because there have been instances where the courts contravened the second leg of the provision of Article III, which is to the effect that Contracting States should not place onerous responsibilities on parties seeking to recognize and enforce arbitral awards.52 In that regard, this paper concludes that if Nigeria is going to portray the image of an arbitration-friendly country which is more disposed to recognizing and enforcing foreign arbitral awards, the Ebokam’s case72 should be reviewed and the Court of Appeal or better still, the apex court- the Nigerian Supreme Court should reconsider the decision given in that case so that it won’t serve as a bad precedent for future cases.

Fundamentally, this paper concludes that registration of foreign arbitral awards, as required under Order 52 Rule 17 of the Federal High Court (Civil Procedure) Rules is not a sine qua non to enforcement under the Arbitration and Conciliation Act. Therefore, applicants seeking to recognize and enforce foreign arbitral awards only need to apply under either Section 51 or Section 54 of the ACA without more and supply the documentary evidence listed in Article IV of the New York Convention.

BIBLOGRAPHY

STATUTES

Arbitration and Conciliation Act of 1988.

Constitution of the Federal Republic of Nigeria, (as amended) 1999.

Federal High Court (Civil Procedure) Rules 2009.

ICSID (Enforcement of Awards) Act LFN 1990

The Arbitration Ordinance Act of 1954.

The Foreign Judgments (Reciprocal Enforcement) Act.

The Reciprocal Enforcement of Foreign Judgments Ordinance.

The 1914 Nigerian Ordinance, Orders and Regulations, 199.

CONVENTIONS

ICSID CONVENTION

NEW YORK CONVENTION

CASES

A.C. Toepter Inc. of New York v. John Edokpolor, (1965) All NLR 292.

Andrew Mark Macaulay v. Raiffeisen Zentral Bank (RZB) Austria, (2003) 18 NWLR (Part 852) 282.

Attorney-General of Lagos State v Attorney-General of the Federation (SC 70 of 2004) [2004] NGSC 19 (10 December 2004).

Dale Power Systems Plc v. Witt & Busch Ltd, (2001) 8 NWLR (PT 716).

Ebokam v. Ekwenibe & Sons Trading Company [2001] 2 NWLR (Pt. 696) 32.

Halaoui v. Grosvenor Casinos Ltd, (2002) 17 NWLR (PT. 795).

Imani & Sons Ltd. v. BIL Construction Co. Ltd., [1999] 12 NWLR [Pt. 630] at p. 263.

Marine and General Assurance Co Plc v. Overseas Union & 7 Others.

M.S.S. v. Kano Oil Millers, (1974) NNLR 1

Topher Inc. of New York v. Edokpolor (Trading as John Edokpolor & Sons) (1965) All NLR 307.

Tulip (Nig.) Ltd. v. Noleggioe Transport Maritime S.A.S (2011) 4 NWLR (Pt. 1237) 254.

Andrew Mark Macaulay v. Raiffeisen Zentral Bank (RZB) Austria, (2003) 18 NWLR (Part 852) 282.

ARTICLES

Amazu A. Asouzu, “The Adoption of the UNCITRAL Model Law in Nigeria, Implication of the Recognition and Enforcement of Arbitral Awards” (1999), Journal of Business Law, 185.

Charles Nwalimu & Peter Lang, The Nigerian Legal System, 2009, 646, 658).

Constitution of the Federal Republic of Nigeria (as amended), 1999.

D.S. Sutton, J. Gill & M. Gearing, Russell on Arbitration, para. 8-020 (24th ed., 2015). See also Lord Hodhouse in Associated Electric and Gas Insurance Services Ltd. v. European Reinsurance Co of Zurich (2003) 1 WLR 1041.

Emilia Onyema, Enforcement of Arbitral Awards in Sub-Sahara Africa (2010) LCIA, 26(1).

J.G. Wetter, ‘The Present Status of the International Court of Arbitration of the ICC: An Appraisal’ (1990) 1 AM Rev Intl Arb 91.

Moneke, E., Strengthening The Legal Regime for the Recognition and Enforcement of Arbitral Awards in Nigeria, p. 18-42, The Gravitas Review of Business and Property Law. 9 (3).

Nwanezie V. Idris (1993) 3 N.W.L.R. (pt. 279) 1 at paras B-C. Per Okoro, J.C.A. (p. 17, paras E-G).

Nwakoby & Aduaka, The Recognition and Enforcement of International Arbitral Awards in Nigeria: The Issue of Time Limitation, Journal of Law, Policy and Globalization Vol. 37 (2015).

Olushola Abiloye & Jamiu Akolade, Challenges in the Recognition and Enforcement of Foreign Arbitral Awards in Nigeria (2016), being a paper presented at the 1st International Chamber of Commerce (ICC) Africa Regional Arbitration Conference held in Lagos, Nigeria.


About Author

Abiola Orekoya73 is a Doctoral Candidate at the Delaware Law School. He obtained his LL.M. (Admiralty Law) from Tulane University Law School. His research interests cut across Maritime/Admiralty Law, International Arbitration, International Business Transaction, International Trade, International Human Rights Law and Advocacy, Business & Corporate Law, Jurisprudence & Legal Theory, just to mention but a few.

  1. Olushola Abiloye & Jamiu Akolade, Challenges in the Recognition and Enforcement of Foreign Arbitral Awards in Nigeria (2016), being a paper presented at the 1st International Chamber of Commerce (ICC) Africa Regional Arbitration Conference held in Lagos, Nigeria. []
  2. Id. [] []
  3. Nwakoby & Aduaka, The Recognition and Enforcement of International Arbitral Awards in Nigeria: The Issue of Time Limitation, Journal of Law, Policy and Globalization Vol. 37 (2015). []
  4. Moneke, E., Strengthening The Legal Regime for the Recognition and Enforcement of Arbitral Awards in Nigeria, p. 18-42, The Gravitas Review of Business and Property Law. 9 (3). []
  5. D.S. Sutton, J. Gill & M. Gearing, Russell on Arbitration, para. 8-020 (24 th ed., 2015). See also Lord Hodhouse in Associated Electric and Gas Insurance Services Ltd. v. European Reinsurance Co of Zurich (2003) 1 WLR 1041. []
  6. Abiloye & Akolade, supra note 3. See also Emilia Onyema, Enforcement of Arbitral Awards in Sub-Sahara Africa (2010) LCIA, 26(1). []
  7. Topher Inc. of New York v. Edokpolor (Trading as John Edokpolor & Sons) (1965) All NLR 307. []
  8. See Foreign Judgment (Reciprocal Enforcement) Act, 1990. []
  9. Foreign Judgment (Reciprocal enforcement) Act, Section 12(1). []
  10. By virtue of Section 2 of the Foreign Judgment (Reciprocal Enforcement) Act, which is the Interpretation Section, “judgment” means a judgment or order given or made by a court in any civil proceedings and shall include an award in proceedings on an arbitration if the award has in pursuance of the law in force in the place where it was made become enforceable in the same manner as a judgment given by a court in that place, or a judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party. []
  11. Moneke, supra note 6. []
  12. See The Reciprocal Enforcement of Foreign Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria and Lagos, 1958, hereinafter referred to as (“the 1958 REFJ Ordinance”) [This Ordinance was enacted in 1922 as L.N.8., 1922] []
  13. See The Foreign Judgments (Reciprocal Enforcement) Act, Cap 152, Laws of the Federation of Nigeria, 1990 hereinafter referred to as (“the 1990 FJRE Act.”) [Enacted in 1961 as L.N.56, 1961]. []
  14. Foreign Judgement (Reciprocal Enforcement) Act, Section 2 defines the term “judgment” to include an arbitral award. []
  15. See The FJRE Act. []
  16. The REFJ Ordinance was extended to judgments of various territories and dominions under Her Majesty’s protection by virtue of a number of proclamations made under Section 5 of the Ordinance. Some of the territories and dominions to which it was extended include, the Supreme Court of the Gold Coast Colony, Colony and Protectorate of Sierra Leone, Courts of the Chief Commissioners of Ashanti and of Northern Territories of the Gold Coast, Supreme Court of the Colony of the Gambia, Supreme Court of the State of Victoria, Barbados, Bermuda, British Guiana, Gibraltar, Grenada, Jamaica, Leeward Island, St. Lucia, St. Vincent and Trinidad and Tobago. []
  17. Reciprocal Enforcement of Foreign Judgments Ordinance, Section 3(1). The court, however, has the discretion to permit a longer period for registration. []
  18. Andrew Mark Macaulay v. Raiffeisen Zentral Bank (RZB) Austria, (2003) LCN/3050(SC). []
  19. Foreign Judgment (Reciprocal Enforcement) Act, Section 4. []
  20. See Tulip (Nig.) Ltd. v. Noleggioe Transport Maritime S.A.S (2011) 4 NWLR (Pt. 1237) 254. []
  21. “original court,” as used in the Act means the court by which the foreign arbitral award was given. []
  22. Foreign Judgment (Reciprocal Enforcement) Act, Section 3. []
  23. Nwakoby & Aduaka, supra note 635. [] []
  24. Foreign Judgment (Reciprocal Enforcement) Act, Section 6(1)(ii). []
  25. Foreign Judgment (Reciprocal Enforcement) Act, Section 6(1)(iii) []
  26. Foreign Judgment (Reciprocal Enforcement) Act, Section 6(1)(iii). []
  27. Dale Power Systems Plc v. Witt & Busch Ltd, (2001) 8 NWLR (PT 716). []
  28. Halaoui v. Grosvenor Casinos Ltd, (2002) 17 NWLR (PT. 795). []
  29. This is expressed in the maxim ‘juria novit curia.’ []
  30. This is similarly expressed in the maxim ‘ignorantia judicis ex calamitas innocentis.’ []
  31. See Marine and General Assurance Co Plc v. Overseas Union & 7 Others. []
  32. Andrew Mark Macaulay v. Raiffeisen Zentral Bank (RZB) Austria, (2003) 18 NWLR (Part 852) 282. []
  33. Id. at 296 para. E-G. []
  34. It is properly cited as The 1914 Nigerian Ordinance, Orders and Regulations, 199. This was issued as Chapter 9 of the 1923 edition of the Laws of Nigeria and later Chapter 13 of both 1948 and 1958 editions of the Laws of the Federation of Nigeria {Ch. 9, 92 (1923); Ch. 13, 204 (1948); Ch. 13, 204 (1958)}. See also Charles Nwalimu & Peter Lang, The Nigerian Legal System, 2009, 646, 658). []
  35. The Arbitration Ordinance Act of 1954 was later to be incorporated into the Laws of the Federation of Nigeria, 1958, as this was the year Nigeria had the first set of organized laws. []
  36. The regions that were in existence then in Nigeria were Northern, Western, Eastern, Mid-Western Regions and the Federal Territory of Lagos, the then Southern Cameroons. []
  37. The Act was enacted by a military decree in 1988 and came into effect on 13th March, 1988. []
  38. The term ‘commercial’ is defined to include “all relationships of a commercial nature including any trade transaction for the supply or exchange of goods or services, distribution agreement, commercial representation or agency, factoring, leasing, construction of works, constructing, engineering licensing, investment, 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, rail or road.” []
  39. See the recital to the Act. []
  40. Arbitration and Conciliation Act, Section 51(1). []
  41. M.S.S. v. Kano Oil Millers, (1974) NNLR 1 []
  42. See also A.C. Toepter Inc. of New York v. John Edokpolor, (1965) All NLR 292. []
  43. Arbitration and Conciliation Act, Section 51(2). []
  44. The appropriate court referred to above is the Federal High Court or the relevant State High Court. []
  45. Imani & Sons Ltd. v. BIL Construction Co. Ltd., [1999] 12 NWLR [Pt. 630] at p. 263. []
  46. Abiloye & Akolade, supra note 673. See also Emilia Onyema, Enforcement of Arbitral Awards in Sub-Sahara Africa (2010) LCIA, 26(1). []
  47. J.G. Wetter, ‘The Present Status of the International Court of Arbitration of the ICC: An Appraisal’ (1990) 1 AM Rev Intl Arb 91. []
  48. Nigeria acceded to the Convention on March 17, 1970, but it was not until 1988 when Nigeria domesticated the Convention by virtue of the promulgation of the Arbitration and Conciliation Decree in 1988. []
  49. Arbitration and Conciliation Act, Section 54. []
  50. Id. at Section 54(1)(a). []
  51. Id. at Section 54(1)(b). []
  52. New York Convention, Article III. [] []
  53. Ebokam v. Ekwenibe & Sons Trading Company [2001] 2 NWLR (Pt. 696) 32. []
  54. See the opening statement of the New York Convention, Article III. []
  55. ICSID Convention, Article 25. []
  56. ICSID Convention, Article 54(1). []
  57. Constitution of the Federal Republic of Nigeria (as amended), 1999, Section 12. []
  58. ICSID Convention, Article 69. []
  59. International Centre for the Settlement of Investment Disputes (Enforcement of Awards) Act Cap 120 Laws of the Federation of Nigeria, 2004. []
  60. Id. at Section 1. []
  61. 64 ICSID Convention, Article 54(2). []
  62. International Centre for the Settlement of Investment Disputes (Enforcement of Awards) Act, Section 1(2). []
  63. Federal High Court (Civil Procedure) Rules 2009. []
  64. Federal High Court (Civil Procedure) Rules 2009, Order 52. []
  65. Federal High Court (Civil Procedure) Rules 2009, Order 52 Rule 16. []
  66. Federal High Court (Civil Procedure) Rules 2009, Order 52 Rule 17. []
  67. See Constitution of the Federal Republic of Nigeria [Nigeria], Act No. 24, 5 May 1999. []
  68. Hans Kelsen was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which to a very large degree is still valid today. []
  69. Constitution of the Federal Republic of Nigeria, Section 1(3). []
  70. Attorney-General of Lagos State v Attorney-General of the Federation (SC 70 of 2004) [2004] NGSC 19 (10 December 2004). []
  71. Fons et origo is a Latin term meaning “source and origin”. []
  72. Ebokam, supra note 55. []
  73. Abiola Orekoya, SJD (Ph.D.) Candidate; LL.M. (Tulane); B.L. (Abuja); LL.B. (Lagos). []

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