ABSTRACT
In the light of the need for a smooth international trade and relationship, the role of international arbitration in the resolution of dispute that may arise in the course of this international relationship cannot be overstated. This work seeks to analyze the general concept of arbitration with reference to the workings and enforcement of the International Centre for the Settlement of Investment Dispute Convention (ICSID) awards. While examining the limited role played by Nigerian Courts in the enforcement of awards made pursuant to the International Centre for the Settlement of Investment Dispute Convention.this work embodies five chapters. Chapter one is the general overview of the work and the purpose of this work. Chapter two deals with the general concepts of arbitration as an alternative dispute resolution mechanism. Chapter three deals with enforcement of arbitral awards in Nigeria vis a vizthe role of Nigerian courts. Chapter four centres on International Centre for the Settlement of Investment Dispute Convention (ICSID) awardsand its enforcement in Nigeria while focusing on the limited role played by our domestic courts toward its smooth enforcement. Finally, chapter five is my conclusion and recommendations.
TABLE OF CONTENTS
Tittle i
Approval ii
Certification iii
Dedication iv
Acknowledgements v
Abstract vi
Table of Contents vii
Table of Cases ix
Table of Statutes xi
List of Abbreviations xii
CHAPTER ONE: INTRODUCTION
- Background of the Study 1
- Statement of Problem 2
- Purpose Of Study 2
- Purpose Of Study 2
- Significance of Study 2
- Methodology 2
- Definition of Terms 3
CHAPTER TWO: THE CONCEPT OF ARBITRATION
2.1 Merits of Arbitration over Litigation 5
2.2 Criticisms of Arbitration 7
2.3 Types of Arbitration 10
2.4 Arbitrability 14
2.5 Arbitral Awards 14
CHAPTER THREE: ENFORCEMENT OF ARBITRAL AWARD:
3.1 Recognition 15
3.2 Enforcement 15
3.3 Methods of Enforcing Municipal Awards 15
3.4 Grounds for Refusal of Recognition and Enforcement of Municipal Awards 22
3.5 Enforcement of International Arbitration 24
3.6 Roles of Courts in Nigeria 44
CHAPTER FOUR: BRIEF HISTORY OF ICSID
4.1 Jurisdiction of ICSID 49
4.2 Capacity of Parities under ICSID 49
4.3 Enforcement under the International Centre for the Settlement of
Investment Dispute (ICSID) Convention. 50
4.4 Challenges in the Enforcement of Foreign Arbitral Awards In Nigeria 51
4.5 Implication of this Unholy Attitude 55
CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS
5.1 Conclusion 56
5.2 Recommendations 56
BIBLIOGRAPHY
TABLE OF CASES
Abacha v Fawehinmi (2000) 6NWLR (pt.660)228 36
Access Bank v Erastus (Suit No. M/563/2013) 54
Adwork ltd v Nigerian Airways Ltd (2002) 2NWLR (pt. 645) 415 at 433 40
Agromet Moto Import Ltd v Mauden Engineering Co (1985) 2 ALL 436 53
Agu v Ikewibe (1991) 3NWLR (pt.180) 385 p.407 10
City Engineering Nig. Ltd v Federal Housing Authority (1997) 9NWLR (520) at 244 52
Collins v Collins 28LJCH 186 5
Commercial Assurance Ltd v Alli (1992) 3 NWLR (pt 232) 401 at 405 23
Dolman & Sons v OssetCoproatin (1912) 3KB 257 12
Ext. Munro (1876) 1QBD 726 13
Guardalupe Gas Product Corporation v Nigeria ICSID case No. ARB/78/1 50
Igwego v Ezeugo (1992) 6 NWLR (pt. 249) @61 15
Imani& Sons Ltd v Bill Construction Co. Ltd (1999) 12 NWLR (pt 630) 254 @256 22
INEC v Musa (2002) 11 NWLR (pt. 778) 46
Josiah v The State (1985) NWLR (pt. 1) 125 46
Kwasi v Larbi 13 W.A.C.A. 76 17
Macaulay v R.Z.P of Australia (2003) 18 NWLR (pt.8) 28,30
Marine & General Assurance Co. Plcv Overseas Union
Insurance Ltd &Ors (2006) LRCN vol. 145 2520 29,30
Mensah v Takyiampong (1940) W.A.C.A. 116 16
Murmansk State Steamship v Kano Oil Millers Ltd (1997) ALL NRL 893 52,54
Norska Atlas Insurance v London General Insurance Company 14 Times L.R 541 18
Ofomata&Ors v Amoka&Ors (1974) ECSLR 251 p.253 10
Oline v Obodo (1958) 3 FSC 84 p. 86 10
Onwuka v Nka (1996) NWLR (pt.458)@5 18
Onyenge v Ebere (2004) 6SCNJ 126@141 15
Oyimah v Sampire (1948) W.A.C.A. 350 17
Re Tompson (1864) QB 462 57
Savoa v A.O. Sonubi (2000) 12 NWLR (pt. 682) 539 @547 41
Taylor Woodrow Nig Ltd v S.E.W GMH (1993) NWLR 127 @141 41
Thames Iron Works Co. Ltd v The Queen (1869) 20 KLT (N.S) 318 43
Thorton v Shoe Lane Parking (1971) ALL ER 686 5
Toepher v Edokpeolor (1965) ANLR 307 11,25
Tulip (Nig) Ltd v Noleggio Transport Maritime SAS (2011) 4 NWLR
(pt.1237) 284, 254 52
VAB Petroleum Inc. v Mr Mike Momah (2013) MRSCJ Vol. 19,60 30
Ward v Griffith (1818) Wills Ch34 18
Willam v Wallis & Co. (1914) 2KB 479@485 42
TABLE OF STATUTES
Arbitration and Conciliation Act Cap A18 LFN 2004
Constitution of the Federal Republic of Nigeria, 1999
Evidence Act Cap E14 LFN, 2011
Foreign Judgment (Reciprocal Enforcement) Act, 1990
Foreign Judgment (Reciprocal Enforcement) Act, 2004
ICSID Convention of 1965
New York Convention of 1959
LIST OF ABBREVIATIONS
ALL ER – All England Report
Ch – Chancery
FSC – Federal Supreme Court
FWLR – Federal Weekly Law Report
ICSID – International Centre for the Settlement of Investment Dispute.
JCA – Justice Court of Appeal
JSC – Justice of the Supreme Court
KB – King’s Bench
LFN – Laws of the Federation of Nigeria
MRSCJ – Monthly Report of Supreme Court Judgment
NWLR – Nigerian Weekly Law Report
QB – Queen’s Bench
CHAPTER ONE
GENERAL INTRODUCTION
- Background to the Study
International commercial arbitration provides an attractive alternative to the traditional method for the settlement of investment dispute. It avoids the demerits of litigation in domestic courts. It offers the parties the opportunity to select arbitrators who enjoy their confidence and have the necessary expertise in the material field.
Where an award debtor immediately carries out the terms of an arbitral award, the question of enforcement does not arise. However, as is mostly the case especially with respect to arbitral award made pursuant to the ICSID Convention between a state and a national of another state, the unsuccessful party may be unwilling to comply with the terms of the award or may even seek to challenge it. Unfortunately, the arbitral process cannot by itself enforce its own award, because the arbitrators do not have executive powers to enforce its award. As such, it often means that the successful party may have won the battle but is yet to win the war.
Therefore, in order to secure the enforcement of the award, the successful party must take steps after obtaining the award in a foreign jurisdiction to have the award enforced by Nigerian court so that the machinery of the court processes can be used to enforce it. In so doing, the first thing a successful party has to do is to decide which of the enforcement regime he wishes to adopt in having the award enforced.
However, most often than not, our courts are unwilling to pronounce in favour of an arbitral award especially award made pursuant to ICSID Convention. This work attempts to identify the reason for our courts’ unwillingness to influence the enforcement of ICSID awards and thereby proffering possible way out of this current quagmire.
- Statement of Problem
The problem lies with the discretion of Nigerian courts to influence the enforcement of ICSID awards in deserving cases.
- Purpose Of Study
This work attempts to identify why our courts are passive with respect to enforcement of awards made pursuant to the International Centre for the Settlement of Investment Dispute (ICSID) Convention
- Scope Of Study
This work is limited to identifying the limitation imposed on Nigerian courts in the enforcement of ICSID award.
- Significance of Study
The importance of this work is as follows:
- Identifying the various regimes for enforcement of arbitral award in Nigeria
- Identifying the reasons for our court’s passive role in enforcing arbitral awards
- Identifying possible way out of this limited enforcement procedure.
- Methodology
The approach adopted in this work is a doctrinal approach, as this research work is based on information obtained from case laws, statutes, conventions, journals and textbooks.
- Definition of Terms
1.7.1 Award
According to Black Law Dictionary, an award is defined as “the decision or determination rendered by arbitrators or commissioners, or other private or extra judicial deciders, upon a controversy submitted to them; also the writing or document embodying such decision.”[1]
An award is the decision or “judgment” of the arbitration panel and thus the end product of the arbitral proceedings.[2]
1.7.2 Enforcement
According to the Black’s Law Dictionary, “Enforcement is making sure a rule or standard or court order or policy is properly followed.”[3]
[1]Black’s Law Dictionary(2nd ed.St. Paul, Minn.: West Publishing, 1891) p.149
[2] C Ibe, Insight on the Law of Private Dispute Resolution in Nigeria (Ed ‘Demak Ltd. 2008)p.175
[3]Op.cit. p364
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